p 


This  book  is  DUE  on  last  date  stamped  Ijelow 


'JAN  5      1932 


EXTRATERRITORIAL  CASES 


Volume  I 


INCLUDING 


THE  DECISIONS   OF  THE   UNITED  STATES  COURT  FOR   CHINA 

FROM   ITS  BEGINNING,  THOSE  REVIEWING  THE  SAME 

BY    THE    COURT    OF    APPEALS    AND    THE 

LEADING  CASES  DECIDED  BY  OTHER 

COURTS  ON  QUESTIONS  OF 

EXTRATERRITORIALITY 


COMPILED  AND  EDITED   BY 

CHARLES  SUMNER  LOBINGIER,  D.C.L.,  Ph.D., 

Judge  of  the  United  States  Court  for  China 


47939 


MANILA 
BUREAU  OF  PRINTING 
1920 
14008— O.  W. 


TO 

Dr.  JOHN  BASSETT  MOORE 

PUBLICIST.  AUTHOR.  TEACHER, 

THIS  VOLUME  IS  APPRECIATIVELY  DEDICATED 
IN    RECOGNITION    OF    HIS    CON- 
TRIBUTIONS TO  THE  SUB- 
JECT OF  WHICH  IT 
TREATS. 


JX 


EDITOR'S   PREFACE. 


The  need  of  rendering  accessible  the  decisions  of  the 
United  States  Court  for  China,  accumulating  now  for  nearly 
fourteen  years,  has  long  been  recognized  by  the  Bar  and 
others  dealing  directly  with  the  Court ;  but  it  was  not  until 
1919  that  an  appropriation  was  provided  for  that  purpose 
and  then  only  $1,000.  In  1920  an  item  of  $2,000  was  added 
to  the  Court's  current  expense  fund  with  the  understanding 
that  it  should  be  used  for  such  publication. 

There  being  no  one  else  to  assume  the  task  of  preparing 
the  copy  and  seeing  the  work  thru  the  press  the  Editor 
undertook  it  and,  as  against  the  deficiencies  of  the  enter- 
prise, the  reader  is  asked  to  bear  in  mind  that  the  work 
was  done  without  expert  assistance  and  in  addition  to  the 
heavy  demands  of  growing  dockets  in  what  is  territorially 
the  largest  district  of  our  Federal  Court  system. 

In  selecting  cases  for  publication  it  has  been  the  aim  to 
include  only  those  in  which  a  question  of  law  has  been 
decided  or  discussed.  Opinions  of  the  Court  of  Appeals, 
reviewing  on  the  merits  those  of  the  United  States  Court  for 
China,  have  been  included  while,  both  for  the  convenience 
of  the  practitioner  and  to  illustrate,  as  no  other  method 
can,  the  evolution  of  extraterritoriality,  the  leading,  judicial 
and  other,  authorities  from  elsewhere  are  reproduced.  It 
is  hoped  that  the  work  may  be  found  useful,  even  by  those 
not  practicing  before  the  United  States  Court  for  China,  as 
a  case  book  on  extraterritorial  jurisdiction. 

The  Editor's  thanks  are  due  to  the  Executive  OfRce  in 
Manila  for  expediting  the  work  in  the  Philippine  Bureau 
of  Printing  and  to  Mrs.  F.  H.  Stevens  of  the  Philippine 
Supreme  Court  staff  for  much  practical  assistance  in  dif- 
ferent stages  of  the  enterprise. 

C.  S.  L. 
American  Compound, 

Shanghai,  China, 

September  7,  1920. 


AMERICAN  DIPLOMATIC  REPRESENTATIVES   EXERCISING 
JUDICIAL  FUNCTIONS  IN  CHINA.^ 


COMMISSIONERS,    ETC. 

(At  Macao.) 
Caleb- Gushing  Feb.   27,   1844-Aug.  27,   1844. 

(At  Canton.) 

James  Biddle,  U.  S.  N Aug.  8,  1845-Apr.  15,  1846. 

Peter  Parker    (Charge) Apr.  15,  1846-Oct.  10,  1846. 

A.  H.  Everett Oct.  10,  1846  (Died)  June  28,  1847. 

Peter   Parker    (Charge) June  28,  1847-Aug.  24,  1848. 

Com.  John  W.  Davis,  U.  S.  N Aug.  24,  1848-May  25,  1850. 

Peter  Parker  (Charge) May  25,  1850-Jan.  31,  1853- 

Humphrey   Marshall   Jan.  31,  1853-Jan.  27,  1854. 

Peter   Parker    (Charge) Jan.  27,  1854-Apr.  15,  1854. 

Robert    M.    McLane Apr.  15,  1854-Dec.  12,  1854. 

Peter  Parker    (Charge) Dec.  12,  1854-May  10,  1855. 

Com.  J.  Abbott,  U.  S.  N.  (Charge) May  10,  1855-Nov.  9,  1855. 

S.  Wells  Williams   (Charge) Nov.  9,  1855-Dec.  31,  1855. 

Peter    Parker    Dec.  31,  1855-Aug.  25,  1857. 

S.  Wells  Williams  (Charge) Aug.  25,  1857-Nov.  25,  1857. 

Thomas    B.    Reed Nov.  25,  1857-Dec.  8,  1858. 

S.  Wells  Williams   (Charge) Dec.  8,  1858-May  18,  1859. 

John    E.    Ward May  18,  1859-Dec.  15,  1860. 

Com.    C.    K.    Stribling,    U.    S.    N. 

(Charge)    Dec.  15,  1860-Oct.  14,  1861. 

S.  Wells  Williams  (Charge) Oct.  14,  1861-Oct.  24,  1861. 

MINISTERS,   ETC. 

Anson  Burlingame Oct.  24,  1861-Nov.  21,  1867. 

(At  Peking  from  July  20,  1862.) 

S.  Wells  Williams    (Charge) May  5,  186o-Sept.  19,  1866. 

S.  Wells  Williams  (Charge) Nov.  21,  1867-Sept.  29,  1868. 

J.  R.  Browne Sept.  29,  1868-July  5,  1869. 

S.  Wells  Williams  (Charge) July  5,  1869-Apr.  20,  1870. 

Frederick  F.  Low Apr.  20,  1870-July  24,  1873. 

^  Furnished    by    the    courtesy    of    Willys    R.     Peck,     Chinese    Secretary,     American 
Legation,    Peking. 

V 


VI  I  EXTRATERRITORIAL  CASES. 

S.  Wells  Williams  (Charge) July  24,  1873-Oct.  28,  1874. 

Benj.  P.  Avery „ Oct.  28,  1874-Nov.  8,  1875. 

Chester  Holcombe    (Charge) Nov.  8,  1875-Jan.  1,  1876. 

George   F.   Seward Jan.  1,  1876-Aug.  16,  1880. 

Chester  Holcombe   (Charge) June  8,  1878-June  19,  1879. 

James    B.    Angell Aug.  16,  1880-Oct.  13,  1881. 

Chester  Holcombe   (Charge) Oct.  13,  1881-Aug.  17,  1882. 

John  Russel  Young Aug.  17,  1882-Apr.  8,  1885. 

Enoch  J.  Smithers  (Charge) Apr.  8,  1885-Oct.  1,  1885. 

Charles    Denby,    Sr Oct.  1,  1885-July  10,  1898. 

Charles   Denby,   Jr.    (Charge) Mar.  17,  1894-Oct.  27,  1894. 

Charles   Denby,   Jr.    (Charge) May  14,  1896-Aug.  1,  1896. 

Edwin  H.  Conger July  10,  1898-Jan.  14,  1905. 

H.  G.  Squiers  (Charge) Mar.  11,  1901-Aug.  17,  1901. 

John   G.   Coolidge    (Charge) Jan.  14,  1905-June  1,  1905. 

W.  W.  Rockhill June  1,  1905-June  30,  1906.' 

^  After  this   date   the  Minister  ceased  to   exercise  judicial  functions. 


OFFICERS  OF  THE  UNITED  STATES  COURT  FOR  CHINA. 


JUDGES. 


Lebbeus  R.  Wilfley,  of  Missouri 1906-1908. 

Rufus  H.  Thayer,  of  District  of  Columbia 1909-1913. 

Charles  Sumner  Lobingier,  of  Nebraska 1914- 


DISTRICT  ATTORNEYS. 


Arthur  Bassett,  of  Missouri 1906-1910. 

Frank  E.  Hinckley,  of  California 1910-1915. 

Chauncey  P.  Holcomb,  of  Delaware 1915- 


UNITED  STATES  COMMISSIONERS. 

Nelson  E.  Lurton,  of  Missouri 1918-1920  (Aug.  7). 

Ferno  J.  Schuhl,  of  California Aug.  7, 1920- 

CLERKS. 

Frank  E.  Hinckley,  of  California 1906-1910. 

James  B.  Davies,  of  Michigan 1911-1913. 

Earl    B.    Rose,    of    Wisconsin 1914—1918. 

William  A.  Chapman,  of  Ohio,  Acting 1918-1919. 

Appointed   1921. 

UNITED   STATES  MARSHALS. 

Orvice  R.  Leonard,  of  Michigan 1906-1907. 

Hubert   M.   O'Brien,   of   Michigan 1907-1909. 

Daniel  A.  Wilson,  of  Michigan 1909-1915. 

Paul  McRae,  of  Virginia 1915-1918. 

Nelson   E.   Lurton,   of   Missouri 1918- 

vii 


ROLL  OF  ATTORNEYS. 


{Admitted  to  the  Bar  of  the  Court  since  its  organization.) 

^ame  Date   of  admission. 

Adams,  Walter  A Jan.  6,  1915. 

Allan,  A.  S April  25,  1913. 

Allen,  Edgar  Pierce  * April  2,  1907. 

Andrews,   Lorrin   Jan.  10,  1907. 

Austin,  Warren   Robinson June  22,  1917. 

Bassett,  Arthur Dec.  17,  1906. 

Bible,   Frank  E Jan.  2,  1920. 

Bishop,  Crawford  M March  5,  1912. 

Blume,  William  W Sept.  29,  1920. 

Brooks,    Francis    M April  20,  1909. 

Brown,  A.  H Jan.  27,   1911. 

Browne,  James  R Oct.    18,    1920. 

Bryan,  Robert  T.,  Jr May  7,  1917. 

Concepcion,   Gregorio   C April  15,  1920. 

Crane,  Judson  A March   5,   1912. 

Curtis,  George  F July  28,   1909. 

Davies,  James  B Nov.  8,  1912. 

Douthitt,    E.    A Dec.    3,    1907. 

Evans,  Richard  T Oct.   14,   1912. 

Faison,  Paul  F Jan.   12,   1920. 

Fessenden,  Stirling  Jan.    2,    1907. 

Fleming,  William  S April  20,  1907. 

Frost,  Ralph  A : Dec.    3,    1907. 

Gibbs,  Allison  D Oct.    3,    1918. 

Gott,  Oswald  W.  Jr  * May  27,  1918. 

Gullas,   Paulino   April  15,  1920. 

Hadley,  Frank  W Dec.    15,   1915. 

Hartigan,   Leonard   W Dec.  22,   1920. 

Haskell,  Roland  S Jan.  8,  1918. 

Keen,    M.    L June  23,  1913. 

Keen,   W.  H June  10,  1907. 

Hinckley,   Frank   E Dec.   3,   1907. 

Holcomb,  C.  R  * April  20,  1909. 

Holcomb,  Chauncey  P June   3,    1915. 

Jernigan,    T.    R  * Jan.    2,    1907. 


*  Deceased. 

ix 


X  I  EXTRATERRITORIAL  CASES. 

Name.  Date  of  admission. 

Kitchin,  Edgar  M - Feb.   10,  1920. 

Krisel,  Alexander   April  18,  1914. 

Linebarger,  Paul  Myron July  10,  1919. 

Lucker,  Harry  A ^ Aug.   4,   1910. 

Lurton,   Nelson  E „ Dec.  2,  1918. 

McCauley,  Helen  L.  L Dec.  11,  1920. 

McDonough,  Charles  A May  15,  1919. 

McRae,   Paul  * June   3,    1915. 

Mel,   Hua-Chuen   _ Feb.  24,  1916. 

Paredes,   Quintin   Feb.   24,  1921. 

Perkins,   Eugene  A Dec.    2,    1918. 

Rankin,    Charles    W Jan.  22,   1915. 

Relova,  Jose  April  15,  1920. 

Rice,  Joseph  W July  14,  1908. 

Rodger,  H.   D Dec.  27,  1912. 

Rodgers,  W.  L Oct.  11,  1910. 

Romualdez,   Miguel   April  15,  1920. 

Rose,   Earl   B April  18,  1914. 

Ross,   James   April  11,  1921. 

Rowe,  J.  Edward,  Jr March  23,  1921. 

Schoenfeld,  John  W June  13,  1921. 

Schuhl,  F.  J Dec.   18,  1919. 

Schwartzkopf,   Sidney  C June  22,  1920. 

Seavey,  Warren   A January  31,  1910. 

Sharfman,  J.  L April  4,  1911. 

Shoop,  Max  June  1,  1921. 

Simmang,  Ernest  T „ „ Dec.  8,  1920. 

Suntay,    Apolonio    April  15,   1920. 

Sycip,  Albino  Z Oct.  17,  1916. 

Taylor,  A.  C April  11,  1911. 

Thompson,    George   J June  22,  1916. 

Walker,  Merle  R Feb.  24,  1921. 

Weeks,  William  S „ Nov.  7,  1916. 

Williams,   F.   Henry  March  21,  1917. 

Yamzon,  Victoriano Oct.   16,   1918. 

Zankl,  M.  N March  3,  1917. 

*  Deceased. 


TABLE  OF  CASES  REPORTED. 


A. 

Page. 

Abdul  Co.  V.  Hughes 290 

Alford's    Adoption,   In   re 441 

Allen  V.  Allen 499,  533 

Allen,    United    States   v 308, 326,  621 

Allen,  Young  John,  In  re  Will  of 92 

American  Food  Manufacturing  Company,  Ltd.,  In  re  Petition 

for  Bankruptcy  of 896 

American  Food  Manufacturing  Co.,  King  Ping  Kee  v 735 

American  Food  Mfg.  Co.,  Yao  Sui  Dong  v 869 

American  Machinery  &  Export  Co.,  J.  Spunt  &  Co.  v 778 

American  Sales  Corporation,  Ezra  v 954 

American   Trading  Co.,   Shanghai   Tannery  Co.,   Ltd.,  v 576 

American  Trading  Co.,  Siao  King  Kee  v 940 

American    Trading    Co.,    Steele    v 964 

Anderson,  Macdonald  v 77 

Andrews  &  George,  Nee  Chang  Mow  v 243 

Andrews  &  George,  Ying  Niang  Tze  v 725 

Antonio,  United  States  v 733 

Arkell  &  Douglas,  Kung  Che  et  al.  v 884 

Arkell  &  Douglas,  Inc.,  Loo  Wei  Chong  v 884 

Arkell  &  Douglas,  Meier  &  Kaltzoff  v 904 

Armstrong,  United  States  v ; 349,  485 

Arnold,  Raigorodetzkaia  v 589 

Augustin  V.  Augustin 933 

B. 

Bahlke  v.   Brown 340 

Barchet,  In  re  Estate  of 235 

Barkley  Company,  Inc.,  Heiman  &  Co.  v 768 

Barkley  Company,  Inc.,  v  Maloney 926 

Barkovitch,  Katz  et  al.  v 205 

Basch,  Newman  v 469 

Bascom,  In  re  Jurisdiction  of 378 

Bascom,  United  States  v 382 

Bassity,  In  re  Estate  of 595 

Beeks,  United  States  v 520 

Bell  V.  Sauer 240 

Bell,  In  re  Will  of 893 

Bennett  V.  Brooks 220 

xi 


xii  I  EXTRATERRITORIAL  CASES. 

Papre. 

Biddle,  In  re  Will  of .'. 887 

Biddle,  Umted  States  v 84,  522  n. 

Biddle  v.   United  States 120 

Blomberg,  John  Layton  Company  v 762,  818 

Bonnell,  In  re  Will  of 647 

Boulon,  Tarn  Wa  v 527 

Brooks,   Bennett  v 220 

Brooks,  Cathay  Trust  v 256 

Brooks  V.  Irvine,  Mead  and  International  Banking  Corporation..  107 

Brooks,    Shekury   v 225 

Brown,  Bahlke  v 340 

Brown,  Duquesne  v 280 

Brown  v.    Sexton 211 

Butland,  Woosung-Hankow  Pilot  Association  v 270 

C. 

Cameron   v.   Williams 509 

Canton  Christian  College,  Paget  v '. 457 

Caravel  &  Co.,  Inc.,  Mercantile  Bank  of  India,  Ltd.,  v 100? 

Carver  et  al,  United  States  v 959 

Casdagli    v.    Casdagli 104 

Cathay  Trust  v.  Brooks 256 

Cavanagh   v.    Worden 317,  365 

Chang  Quai  Ching  et  al.  v.  Dodge  &  Seymour 840 

Charlesworth,  Pilling  Co.  et  al.,  Secretary  of  State  for  Foreign 

Affairs    v 66 

Chiang  Zung  Match  Factory  Corporation  v.  Yek  Tong  Lin  F. 

&  M.  Ins.  Co.,  Limited 200 

China    Press,    Weigel    v 354 

Chinese-American  Co.  v.  Tenney 756 

Connell  Brothers  Company,  Diederichsen  &  Co.  v 297,  33-3 

Corrigan,  In  re  Estate  of 717 

Cunningham,  Mather  et  al.  v 136 

Cunningham  v.  Rodgers , : 109 

1>. 

Dadisman,   /??    re   Will    of 650 

Dainese  v.   Hale 32 

Davis,  In  re  Will  of 844 

Davis  v.   Tsu   Eu   Sung 919 

Derby,  In  re  Will  of 912 

Diaz,  United  States  v 784,787,788 

Diederichsen  &  Co.,  Connell  Bros.  Co.  v 297,333 

Dodge  &  Seymour,  Chang  Quai  Ching  et  al.  v 840 

Dodge  &  Seymour,  Sung  Kya  Yi  v 889 

Dommer,  United  States  v 914 

Donohoe,   United   States  v 347 

Duquesne  v.  Brown 280 


CASES  REPORTED.  xiii 

E. 

Page. 

Edwards  v.   Graves 167 

Endicott,  Wong  Tsung  Wai  v 436 

Engelbracht,  United  States  v 169 

Everett  v.  Swayne  &  Hoyt 600,  867 

Ezra  v.  American  Sales  Corporation 954 

Ezra  V.  Merriman 809  890 

F. 

Faulkner,  United  States  v I95 

Fearon,  Daniel  &  Co.,  Inc.,  v.  Hall 999  n. 

Fernandez,   United    States  v 247 

Fernandez,  Zee  Foh  Sung  v 956 

Fitch,  In  re  Estate  of 869 

Fobes,  In  re  Assignment  of „ 950 

Ford  V.  Macdonell-Chow  Corporation 801 

Frazar  &  Company,  Steiner  v 249 

G. 

Garland  Steamship  Company,  Schnabel,  Gaumer  &  Co.  v 636 

George,  In  re  Estate  of 935 

Ginsburg  et  al.  v.  Zimmerman 133 

Gouldner,  United  States  v 372 

Graves,   Edwards  v 167 

Grimes,  United   States  v 305,451,477 

Grimsinger,  United  States  v 282,  286 

Gunn   V.    Gunn .• 836 

H. 

Hadley,  United  States  v 207 

Hager,   Rodger   v 444 

Hale,   Dainese  v 32 

Hall,  Fearon,  Daniel  &  Co.  v 999  n. 

Hankow  Consul  General's  Report,  In  re 291 

Heiman  &  Co.  v.  Barkley  Company,  Inc 768 

Hillebrandt  v.  Zimmerman  &  Co 88 

Honigsberg  &  Co.  v.  Jones 991 

Honigsberg  &  Co.,  Star  Garage  Co.  v 556 

Howard,  In  re  Will  of 1000 

Hsieh   Po-hsiang  v.   Shippers'  Commercial   Corporation 1010  n. 

Huang  Mien  Chow  v.  Machinery  &  Metals  Sales  Company 808 

Hughes,  Abdul   Co.   v 290 

Hunter,  United  States  v 629 

I. 

In  re  Alford's  Adoption 44I 

In  re  Allen's    Will 92 

In  re  Assignment    of    Fobes..... 950 


Xiv  I  EXTRATERRITORIAL  CASES. 

Page, 

In  re  Barchet's  Estate - 235 

In  re  Bassity's    Estate 595 

In  re  Bell's    Will 893 

In  re  Biddle's    Will 887 

In  re  Bonnell's   Will 647 

In  re  Coi-rigan's   Estate 717 

In  re  Dadisman's  Will 650 

In  re  Davis'  Will 844 

In  re  Derby's    Will 912 

In  re  Fitch's   Estate 869 

In  re  George's  Estate 935 

In  re  Hankow  Consul  General's  Report 291 

In  re  Howard's  Will 1000 

In  re  Jaeger's  Estate 722 

In  re  Jurisdiction  of  Bascom 378 

In  re  Kavanaugh's  Will 842 

In  re  Krisel 831,  835  n.,  846 

In  re  Landers'  Estate 540  n. 

In  re  Lee's  Will 699 

In  re  Lucker'^  Will 626 

In  re  Martin's  Will 771 

In  re  McGhee's   Estate 418 

In  re  Narodezky's   Petition 815 

In  re  Noyes'    Estate 538 

In  re  Petition  for  Bankruptcy  of  American  Food  Manufactur- 
ing Company ., 896 

In  re  Robins'  Will 654 

In  re  Ross   40 

In  re  San  Juan's  Will 937 

In  re  Shanstrom's    Will 938 

In  re  Sweet's  Will 713 

In  re  Thacher's    Will 524 

In  re  Trinidad's   Will 894 

In  re  Turner's  Will 631 

In  re  Wade's  Will 693 

In  re  Werlich's  Will 668 

In  re  Wu's    Adoption 753 

Irvine,  Mead  and  International  Banking  Corporation,  Brooks  v..  107 

Israel,  Ross  v 245 

J. 

J.  Spunt  &  Co.  V.  American  Machinery  &  Export  Co 778 

Jaeger,  In  re  Estate  of 722 

Japan,  Re  Consular  Jurisdiction  in 27 

John   Layton    Company   v.   Bloraberg 762, 818 

Jones,   Honigsberg   &    Co.    v 991 


CASES  REPORTED.  XV 

Page. 

Jones,   United    States   v 154 

Jordan,  United  States  v 259 

Juvenile  Offender,  United  States  v 687 

K. 

Kaltzoff  V.  Arkell  &  Douglas 904 

Katz  et  al.  v.  Barkovitch 205 

Kavanaugh,  In  re  Will  of 842 

Kilgore,    United    States    v...„ 395 

King  Ping  v.  American  Food  Manufacturing  Co.— 735 

Krausch  (alias  Nelson),  United  States  v 786 

Krisel,  In  re 831,  835  n.,  846 

Kung  Che  et  al.  v.  Arkell  &  Douglas 884 

L. 

Landers,  In  re  Estate  of 540  n. 

LeClair,   United    States   v 414, 477,  479 

Leddy,  United   States  v 547 

Lee,  In  re  Will  of - 699 

Lee  Ki-lung,  Rex  v 351  n. 

Leonhardt  and  Terry,  United  States  v 790 

Ling  Ah  Choy  et  al.  v.  Standard  Oil  Co 561 

Loo  Wei  Chong  et  al.  v.  Arkell  &  Douglas,  Inc 884 

Low  Ping  Leung,  U.  S.  v 349  n. 

Lucker,  In  re   Will  of 626 

Lung  Chu  V.   Sino-Americo  Trading  Corporation 1006 

Lunt,  United  States  v 279 

M. 

Macdonald  v.  Anderson  77 

MacDonell,  United  States  v 680 

Macdonell-Chow  Corporation,  Ford  v 801 

Machinery  &  Metals  Sales  Company,  Huang  Mien  Chow  v 808 

Maloney,  Barkley  Company,  Inc.  v 926 

Martin,  In  re  Will  of 771 

Martin,    United    States   v 549 

Mather  et  al.  v.  Cunningham 136 

McGhee's  Estate,  In  re 418 

McRae,  U.  S.  ex  rel.  Raven  et  al.  v 655 

Meier  et  al.  v.  Arkell  &  Douglas 904 

Mencarini  &  Co.  v.  Thane  &  Co 980 

Mercantile  Bank  of  India,  Ltd.,  v.  Caravel  &  Co.,  Inc 10.02 

Merriman,  Ezra  v 809,  890 

Mitchell    V.    Mitchell 690 

Morse,   Wong   Vun    Kung   v 641 

14008  O.  W. ^ii 


XVi  I  EXTRATERRITORIAL  CASES. 

N. 

Page. 

Narodezky,  In  re  Petition  of — 815 

Nee  Chang  Mow  v.  Andrews  &  George 243 

Newman   v.   Basch 469 

Newman's  Geselschaft  v.  Zimmerman 500 

Noblston  V.  Vacuum  Oil  Company 214 

Noyes'    Estate,    In   re 538 

O. 

Oriental   Press  v.   Robert   Dollar   Co 989 

Osete,    United    States   v 782 

Osman,  United  States  v 540 

P. 

Paget  V.  Canton  Christian  College 457 

Papayanni  et  al.  v.  Russian  Steam  Navigation  &  Trading  Co....  12 

Price,    Sexton    v 424 

Price  V.   United  States 129 

R. 

Raigorodetzkaia  v.  Arnold 589 

Rath  V.  Rath 545 

Raven  et  al.,  U.  S.  ex  rel.  v.  McRae 655 

Re  Consular  Jurisdiction  in  Japan 27 

Reid,  United  States  v 666 

Rex  v.  Lee  Ki-lung 351  n. 

Richards    v.    Richards 480 

Rincon,  United  States  v 619 

Robert  Dollar  Co.,  Oriental  Press  v 989 

Robert  Dollar  Company,  Sung  Ping  Sung  v 743 

Roberts    v.    Roberts 916 

Robins,  In  re  Will  of 654 

Rodger   v.    Hager 444 

Rodgers,  Cunningham  v 109 

Rohrer,  United  States  v 515 

Ross,  hi  re 40 

Ross  V.    Israel 245 

Ross  V.  Ross  924 

Russian  Steam  Navigation  &  Trading  Co.,  Papayanni  et  al.  v....  12 

S. 

Salsino,   United    States  v 573,  576n. 

Sandage,   United   States  v 634 

San  Juan,  In  re  Will  of 937 

Sauer,  Bell  v 240 

Schnabel,  Gaumer  &  Co.  v.   Garland   Steamship  Company 636 

Scogin,  United  States  v 376 

Secretary  of  State  for  Foreign  Affairs  v.  Charlesworth,  Pilling 

Co.  et  al 66 


CASES  REPORTED.  XVii 

Page. 

Sexton,    Brown   v 211 

Sexton  V.  Price 424 

Sexton   V.    United    States 180 

Shanghai  Tannery  Co.,  Ltd.,  v.  American  Trading  Co 576 

Shanstrom,  In  re   Will   of 938 

Shekury  v.  Brooks 225 

Shippers  Commercial  Corporation,  Hsieh  Po-hsiang  v 1010  n. 

Siao  King  Kee  v.  American  Trading  Co 940 

Sin  Wan  Pao  Company,  United  States  v 983 

Sino-Americo   Trading   Corporation,   Lung   Chu  v 1006 

Spunt  &  Co.,  J.,  V.  American  Machinery  &  Export  Co... 778 

Standard  Oil  Co.,  Ling  Ah  Choy  et  ah,  v 561 

Star  Garage  Co.,  Ltd.,  v.  Honigsberg  &  Co 556 

Steele   v.   American    Trading   Company 964 

Steiner  v.   Frazar  &  Company 249 

Sonico,  United  States  v 671 

Suffert,  Toeg  &  Read  v 112 

Sun  Ming-shan  v.  Viloudaki 263 

Sung  Kya  Yi  v.  Dodge  &  Seymour 889 

Sung   Ping   Sung  v.    Robert   Dollar    Company 743 

Swayne  &  Hoyt,  Everett  v 600,867 

T. 

Tarn  Wa  v.   Boulon 527 

Tenney,  Chinese-American   Co.  v 756 

Thacher,  In  re  Will  of 524 

Thane   &   Co.,    Mencarini    &    Co.   v 980 

Thompson,   United    States   v 261 

Toeg  &  Read  v.  Suffert 112 

Trinidad,  hi   re  Will   of .' 894 

Tsu  Eu  Sung,  Davis  v 919 

Turner,  In  re  Will  of 631 

U. 

.United  States  v.  Allen 308,326,621 

United   States   v.   Antonio 733 

United  States  v.  Armstrong 349,  485 

United  States  v.  Bascom 382 

United    States   v.   Beeks 520 

United  States,  Biddle  v 120 

United  States  v.  Biddle 84,  522  n. 

United  States  v.  Carver  et  al 959 

United  States  v.  Diaz 784,  787,  788 

United  States  v.  Dommer 914 

United  States  v.  Donohoe 347 

United  States  v.  Engelbracht 169 


xviii  I  EXTRATERRITORIAL  CASES. 

Page. 

United  States  v.  Faulkner 195 

United  States  v.  Fernandez 247 

United  States  v,  Gouldner 372 

United  States  v.  Grimes 305,  451,  477 

United  States  v.  Grimsinger , 282,  286 

United  States  v.  Hadley 207 

United  States  v.  Hunter 629 

United  States  v.  Jones 154 

United  States  v.  Jordan « 259 

United  States  v.  Juvenile  Offender 687 

United  States  v.  Kilgore - - - 395 

United  States  v.  Krausch   (alias  Nelson) 786 

United  States  v.  LeClair „ _ 414,  477,  479 

United  States  v.  Leddy „ 547 

United  States  v.  Leonhardt  and  Terry.— 790 

United    States   v.    Low    Ping    Leung 349  n. 

United  States  v.  Lunt 279 

United  States  v.  MacDonell 680 

United  States  v.  Martin - _ 549 

United  States  v.  Osete 782 

United  States  v.  Osman 540 

United    States,    Price   v 129 

United  States  v.  Reid 666 

United  States  v.  Rincon 619 

United  States  v.  Rohrer 515 

United  States  v.  Salsino 573,  576  n. 

United  States  v.  Sandage 634 

United  States  v.  Scogin 376 

United  States,  Sexton  v 180 

United  States  v.  Sin  Wan  Pao  Company 983 

United  States  v.  Sonico 671 

United  States  v.  Thompson 261 

United  States  v.  Walker 372 

United  States  v.  Wallace „ 900 

United  States  v.  Williams 518 

United  States  v.  Woodward 523  n. 

U.  S.  ex  rel.  Raven  et  al.  v.  McRae 655 

V. 

Vacuum  Oil  Company,  Noblston  v 214 

Viloudaki,  Sun  Ming-shan  v 263 

W. 

Wade,  In  re  Will  of 693 

Walker,  United  States  v 372 

Wallace,  United  States  v 900 

Werlich,  In  re  Will  of 668 


CASES  REPORTED.  XIX 

Page. 

Weigel  V.  China  Press 354 

Williams,   Cameron   v 509 

Williams,  United  States  v 518 

Woodward,  U.  S.  v 523  n. 

Wong  Tsung  Wai  v.  Endicott 436 

Wong  Vun  Kung  v.  Morse 641 

Woosung-Hankow  Pilot  Association  v.  Butland 270 

Worden,  Cavanagh  v 317,  365 

Wu,  In  re  Adoption  of 753 

Y. 

Yao  Sui  Dong  v.  American  Food  Mfg.  Co 869 

Yek  Tong  Lin  F.  &  M.  Ins.  Co.  Limited,  Chiang  Zung  Match 

Factory  Corporation  v 200 

Ying  Niang  Tze  v.  Andrews  &  George 725 

z. 

Zee  Foh  Sung  v.  Fernandez 956 

Zimmerman,  Ginsburg  et  al.  v 133 

Zimmerman  &  Co.,  Hillebrandt  v 88 

Zimmerman,    Newman's    Geselschaft    v 500 

Zumbrum,  Cameron  v 509 


TABLE  OF  REFERENCES. 


I.   CASES. 

A. 

Page. 

A.  M.  Gilman  &  Co.  v.  Cosgrove,  22  Cal.,  356 336 

Abraham  v.  Cunningham,  3  Keb.  725,  2  Mod.,  146 913 

Abd-ul-Messih  v.  Farra,  13  App.  Cases,  431 99, 105 

Acton  V.  Lloyd,  37  N.  J.  Eq.  5 697 

Adams  v.  Field,  21  Vt.,  256 648 

Adriano  v.  De  Jesus,  23  Phil.,  350 700 

Advocate-General    of    Bengal    v.    Ranee    Surnomoye    Dossee,    2 

Moore,  P.  C.  Cas.  N.  S.,  60 23 

Aeneas    MacDonald's    Case,    Foster's    Crown    Law,    59    Scott's 

Cases    on    International    Law,    370 705 

African   Association,  Ltd.,  v.   Allen,   L.  J.  Rep.    (1910),  N.   S. 

LXXIX,    259    (K.    B.    Div.) 463 

Alaska  etc.  Co.  v.  Chase,  128  Fed.  886 976 

Alaska  Gold  Mining  Co.  v.  Ebner,  2  Alaska..611,  656,  662,  689,  813,  816 

Alder  v.  Keighly,  15  M.  &  W.,  117 976 

Alexander  v.  Dunn,  5  Ind.,  122 751 

Alexandra,  The,  104  Fed.,  904 812 

Allen  V.  Bennett,  3  Taunt.  169 242 

Alston  V.  Davis,  118  N.  C,  202,  24  S.  E.,  15 714 

Alston  V.  Wilson,  44  la.  130 , 972 

American  China  Development  Co.  v.  Boyd,  148  Fed.  258 977 

American   Dramatic  Fund  Assoc,  v.  Lett,  42   N.  J.   Eq.,  43,  6 

Atl.,   280 697 

American  Security  etc.  Co.  v.  District  of  Columbia  Comrs.,  224 

U.  S.,  491,  56  L.  ed.,  856,    32  Sup.  Ct.  553 660 

American    Security    etc.    Co.    v.    Rudolph,    38    App.    Cas.    (D. 

C),    32 660 

Ames  v.  Kansas,  111  U.  S.,  449,  28  L.  ed.,  482 880 

Anchor  Electric  Co.  v.  Hawkes,  171  Mass.,  101,  105  N.  E.,  509, 

41  L.  R.  A.,  189,  46  Am.  St.  Rep.,  403 766 

Anderson  v.  State,  104  Ind.,  467,  4  N.  E.,  63 678 

Andrews  v.  Johnston,  7  Col.  App.,  551,  44  Pac,  73 849 

Anonymous,  12  Mod.  559   (1701) 984 

Appeal  of  Knox,  131  Pa.,  220,  18  Atl.,  1021,  6  L.  R.  A.,  353,  17 

Am.  St.  Rep.,  798 715,716 

Apperson  v.  Lazro,  44  Ind.  App.  186,  88  N.  E.,  99 593 

xxi 


XXil  I  EXTRATERRITORIAL  CASES. 

Page. 

Argo,  The,  2  Wheat,  287,  4  L.  ed.,  241 812 

Armory  v.  Delamirie,  1  Strange,  505 552 

Armour  &  Co.  v.  Renaker,  191  Fed.  58,  202  Fed.  901,  904 945 

Armstrong  v.  American  Exchange  Nat,  Bank,  133  U.  S.,  433, 

33  L.  ed.,  747,  10  Sup.  Ct.  Rep.,  450 643,  646 

Armstrong  v.  Armstrong,  29  Ala.,  538 648 

Armstrong  v.  Stokes,  L.  R.  7  Q.  B.,  598,  41  L.  J.   Q.  B.  253, 

2  Eng.  Rul.  Cas.,  471 602 

Armstrong  v.  Toler,  11  Wheat.   (U.  S.)  258,  6  L.  ed.  468 646 

Arrington  v.  Roper,  3  Tenn.  Ch.,  572,  574 896 

Arthur  v.  Dodge,  101  U.  S.  36,  25  L.  ed.,  949 404 

Ashland  etc.  Co.  v.  Shores,  105  Wis.,  122,  81  N.  W.,  136 921 

Atlanta  Stove  Works  v.  Hamilton,  83  Miss.  704,  35  So.  763 968 

Atkyns  v.  Pearce,  2  C.  B.  N.  S.,  763 935 

Avakian  v.  Avakian,  60  Atl.  521 324 

Ayer  v.  Western  Union  Telegraph  Co.,  79  Me.,  493,  10  Atl.,  495..  588 

B. 

Bailey  V.  Holland,  7  App.  Cas.  (D.  C),  189 486 

Bailey   v.    Wayman,   201    Pa.,   249,    50    Atl.,    767 747,748 

Baker  v.  Baker,  195  Pa.,  407,  46  Atl.,  96 837 

Baker  v.  Brown,  83  Miss.,  793,  36  So.,  539 843,  939 

Baker  v.  Chisholm,  3  Tex.,  157 879 

Baker  v.  Dobyns,  4  Dana,  (Ky.)  220 627 

Baker   v.   Hedgecock,    39    Ch.    Div.,    520 828 

Bancroft  v.  Union  Embossing  Co.,  72  N.  H.,  402,  57  Atl.,  97, 

64  L.  R.  A.,  298 767 

Banner  Pub.  Co.  v.  State,  16  Lea,   (Tenn.)   176,  57  Am.  Rep., 

214    987 

Barbour  v.  Shebor,  107  Ala.,  304,  58  So.,  276 ^ 593 

Barclay    v.    Plant,    50    Ala.,    509 880 

Barnard  v.  Backhaus,  52  Wis.  593,  6  N.  W.  252,  9  N.  W.  595....  117 

Barnes  v.  Smith,  159  Mass.  244,  34  N.  E.  403 231 

Barney  v.  Hays,  11  Mont.  99,  571,  27  Pac,  384,  29  Pac,  282..  715,  894 

Barrameda  v.   Moir,  25  Philippine,  44 871,  872 

Barrow   Steamship   Company  v.   Kane,   170  U.  S.,  100,  42   L. 

ed.,    964 602,639 

Earth  v.  Makeever,  4  Biss.,  206,  Fed.  Cas.,  No.  1069 472 

Bartle  v.  Coleman,  4  Pet.,  (U.  S.)   184 644 

Basket  v.  Hassell,  107  U.  S.,  602,  27  L.  ed.,  500 108 

Baxter  v.   Card,   59   Fed.   165 946 

Beach  v.  Hancock,  27  N.  H.  223,  59  Am.  Dec.  373 132 

Beard  v.  Dennis,   6   Ind.,   200 829 

Beaumont  v.  Fell,  2  P.  Wms.,  140  695 

Beck  V.  School  District,  54  Colo.,  546,  131  Pac,  398 944 

Beck  etc.   Co.   v.  Houppert,   104  Ala.,   503,   16   So.,  522 908 


REFERENCES.  XXlll 

_j  Page. 

Beckner  v.  Commonwealth,   126  Ky.,  318,   31   Ky.  L.   Reporter 

708,  103  S.  W.  378 836 

Beecher  v.  Hicks,  7  Lea,    (Tenn.)   207 896 

Beetham  v.  Fraser,  21  T.  K.  R.,  8 828 

Belgium  Decisions  of  May  12  and  Dec.  31,  1877,  Jurisprudence, 

V,    513 483 

Bendet  v.   Ellis,   120   Tenn.,  277,   111    S.   W.   795,   18   L.   R.  A. 

(N.  S.),  114,  127  Am.  St.   Rep.,  1000 645 

Benjamin  v.  Hillard,  23   How.    (U.   S.)    149,  16   L.  ed.,  518....  976 

Benoit  v.  Miller,   (R.  I.),  67  Atl.  87 592 

Benson  v.  Henkel,  198   U.   S.  1,  49  L.  ed.,  919 402,404,407 

Bettison    v.    Brompey,    12    East,    250 649 

Bird  V.  Halsey,  87   Fed.,  671 812 

Birdsong  v.  Ellis,  62  Miss.,  418 805 

Bissell  V.  Gould,  1  Wend.   (N.  Y.),  210,  19  Am.  Dec,  480 361 

Bjorklund  v.  Electric  Co.,  35  Wash.,  439,  77  Pac,  727 908 

Blackstock  v.  N.  Y.  etc.  R.  Co.,  20  N.  Y.,  48,  75  Am.  Dec,  372..  607 

Blair  v.  Kingman  Implement  Co.,  82  Neb.  344,  117  N.  W.  773..  945 

Blaney    v.    Blaney,    126    Mass.,    205 917 

Blizzard  v.   Applegate,   61    Ind.   368 955 

Bluegrass  Cordage  Co.  v.   Luthy,  98  Ky.   583,  33   S.  W.  835, 

17  Ky.   L.  Rep.   1126 1011 

Bly    V.    Bank,    70    Pa.    St.,    453 646 

Boddie  v.  Brewing  Co.  204  111.  352,  68  N.  E.,  394 428 

Boddington  v.  Clairat,  L.  R.  25  Ch.  Div.,  685 888 

Bodeman  v.   State    (Tex.   Cr.  App.),  40   S.  W.,  981 623 

Bold  Buccleugh,  The,  7  Moore's  P.  C.  Cases,  267 20 

Bongner  v.  Ziegenheim,  165  Mo.  App.,  328,  147  S.  W.,  182....  593 

Booth  V.  Hodgson,  6  T.  R.,  405 644 

Booth  V.  Nat.  etc  Co.,  19  R.  I.,  696,  36  Atl.,  714 731 

Borderre  v.  Den,  106  Cal.,  594,  39  Pac.  946 346 

Bors  V.  Preston,  111  U.  S.,  252,  28  L.  ed.,  419 880 

Bort  V.  McCutcheon,  187  Fed.  798,  109  C.  C.  A.  558 335 

Bowas  V.  Pioneer  Tow  Line,  2  Sawy.,  (U.  S.),  21,  3  Fed.  Gas., 

1713    741,923 

Boyd  V.  Boyd,  6  G.  &  J.  (Md.),  25 627 

Boyd  V.  N.  E.  Mut.  L.  Ins.  Co.,  34  La.  Ann.,  845 650,  651,  653 

Bradford  v.  Bank,  13  How.   (U.  S.),  57,  68,  14  L.  ed.,  49 585 

Bradley  v.  Fischer,  13  Wall.,  335,  (U.  S.)   20  L.  ed.,  646 852,867 

Bradshaw  v.  Bradshaw,  2  Y.  &  Col.  (Exch.),  86 694 

Bradwin  v.  Harpur,  Amb.  374 695 

Brandy  v.   McCrosson,   5   Redf.   Surr.,   431 628 

Brevcort  v.  Partridge,   156   Mich.  359,   120   N.   W.   803 946 

Briggs  V.  Ewart,  51  Mo.,  245,  11  Am.  Rep.,  445 908 

Briggs  V.  Smith,  4  Daly  (N.  Y.)   110 513 

Britton  v.  Turner,  6  N.  H.,  481,  26  Am.  Dec,  713 841,  842 


XXiv  I  EXTRATERRITORIAL  CASES. 

Pajie. 

Brodie  v.  Mitchell,  85  Md.,  516,  37  Atl.,  169 62S 

Brooks  V.  Hall,  36  Kan.  697,  14  Pac.  236 946 

Brooks  V.  Martin,  2  Wall.,  (U.  S.)  70,  17  L.  ed.,  732 643,644,646 

Eroschart  v.  Tuttle,  59  Conn.  1,  11  L.  R.  A.,  33 559 

Broughton  v.  Bradley,  34  Ala.,  694,  73  Am.  Dec,  474 913 

Brown  v.  Cranberry  etc.  Co.,  82  Fed.,  351 944,  945,  946 

Brown  v.  U.  S.,  143  Fed.  60 348 

Brown's  Ex'r.  v.  Tilden,  5  H.  &  J.,  371 894 

Bryan  v.  Sundberg,  5  Tex.,  418 710 

Bullis  V.  Giddens,  8  Johns.   (N.  Y.),  82 474 

Bullock   V.    Zilley,    1    N.   J.    Eq.,    489 888 

Burkett  V.  McCarty,  10  Bush   (Ky.),  758 .^ 422 

Burkhalter  v.  Jones,  32  Kan.,  5,  3  Pac.  559.....'. 580 

Burr  V.  House,  3  Alaska,  641 769 

Burrill  v.  Saving  Bank,  92  Pa.  St.,  134,  37  Am.  Rep.,  669 907 

Burtis  V.  Burtis,  1  Hopkins  Ch.  557,  14  Am.  Dec.  563 323,  325 

Butler  V.  Moses,  43  Ohio,  St.,  166,  1  N.  E.,  316 581 

Butler  V.  Washburn,  25  N.  H.,  258 361 

Bunch  V.  Hardy,  3  Lea,   (Tenn.)   543 896 

Burton  v.  Burley,  13  Fed.  811 1005 

Burvant  v.  Wolfe,  126  La.,  787,  52  So.,  1025,  29  L.  R.  A.   (N. 

S.),  677 593 

Buscher  v.   N.  Y.   Transp.   Co.,   106  App.   Div.,  493,  94  N.   Y. 

Suppl.    798 592 

Byers  v.  Hoppe,  61  Md.,  207,  48  Am.  Rep.,  89 627,  628,  714 

C. 

Calan  v.  Wilson,  127  U.  S.,  540,  32  L.  ed.,  223 903 

Caldwell  v.  State,  5  Tex.  18 624 

Campbell  v.  Gordon,  6  Cranch  (U.  S.),  357,  3  L.  ed.,  190 701,702 

Campbell  v.  Haverhill,  155  U.  S.  610,  39  L.  ed..  280 178 

Cambria  Iron  Co.  v.  Ashburn,  118  U.  S.  57,  30  L.     ed.,  61,  6 

Sup.  Ct.  Rep.,  929 404 

Canning's  Case,  19  How.  St.  Tr.  383 675 

Cannon  v.  Apperson,  14  Lea,  (Tenn.)   553 896 

Canors-McConnell  Co.  v.  McConnell,  140  Fed.,  412 825 

Capelli  V.  Dondero,  123  Cal.  324,  55  Pac.  1057 945 

Garden,  v.  State,  84  Ala.,  417,  4  So.,  823 678 

Cariens  v.  Cariens,  50  W.  Va.,  113,  40  S.  E.,  335,  55  L.  R.  A., 

930   534,535 

Carlisle  v.  Barker,  57  Ala.  267 946 

Carpenter  v.  Winn,  221  U.  S.,  533,  55  L.  ed.,  842 811 

Carr.  v.  Hull,  65  O.  St.,  394,  58  L.  R.  A.,  641 539 

Case  V.  Fishback,  10  B.  Mon.   (Ky.)   40 880 

Central  R.  Co.  v.  Goodwin,  120  Ga.,  83,  47  S.  E.  641 908 

Chapman  v.  State,  78  Ala.  463,  56  Am.  Rep.,  42 131 

Charlton  v.  Miller,  27  Ohio  St.,  298,  22  Am.  Rep.,  307 888 


KEFERENCES.  XXV 

Page. 

Chelsea  Nat.  Bank  v.  Smith,  74  N.  J.  Eq.  275,  69  Atl.  533 945 

Chesapeake  &  Ohio  R.   Co.  v.  Francisco,  149  Ky.,  307,   148   S. 

W.,   46 619 

Chicago  etc.  R.  Co.  v.  Belliwith,  83  Fed.,  437 907,  909 

Chicago  etc.  R.  Co.  v.  Price,  97  Fed.,  423 559 

Chicago  etc.  R.  Co.  v.  Wolcott,  141  Ind.,  267,  39  N.  E.  451....       618 

Childress  v.  Cutter,  16  Mo.,  24 700 

Chinnock  v.  Marchioness  of  Ely,  4  D.  J.  &  S.  646 253 

Chipman  v.  Cook,  2  Tyler   (Vt.),  456 487 

Christensen  v.  Borax  Co.,  26  Or.,  302,  38  Pac,  127 731 

Chute  V.  Quincy,  156  Mass.,  189,  30  N.  E.,  550 580 

City  of  Pasadena  v.  Superior  Court,  157  Cal.,  781,  109  Pac,  620..       876 

Clairmont  v.  United  States,  225  U.  S.,  551,  56  L.  ed.,  1201 314 

Clark  V.  State  (Okla.  Cr.  App.),  106  Pac,  804 625 

Clarke  v.  Ransom,  50  Cal.,  595 715 

Claus  V.  Northern  Steamship  Co.,  89  Fed.,  646,  32  C.  C.  A.,  282..  558 
Cleghorn  v.   N.  Y.   Central,  etc   R.   Co.,  56  N.  Y.   44,   15  Am. 

Rep.    375 989 

Clemons  v.  Helehan,  52  Neb.,  287,  72  N.  W.,  270 370 

Cleveland  Rolling  Mill  v.  Rhodes,  121  U.  S.  255.  7  Sup.  Ct.  882, 

30  L.  ed.,  920 337 

Clinton  v.  Englebrecht,  13  Wall.   (U.  S.),  434,  20  L.  ed.,  659..  173,929 

Clune  V.  U.  S.,  159  U.  S.,  590,  40  L.  ed.,  269 796,903 

Cobb.  V.   U.   S.,   172   Fed.,   641 835,852,854 

Cochran  v.  Arnold,  58  Pa.  St.  399 665,  760 

Coffin  V.  Landis,  46  Pa.  St.,  426 731 

Coffin  V.  U.  S.,  156  U.  S.,  455,  39  L.  ed.,  491 555 

Cohen  v.  Hoff,  2  Tredway,  661 710 

Cohens  v.  Virginia,  6  Wheat.  (U.  S.),  264,  5  L.  ed.,  257 659 

Cole  V.  Babcock,  78  Maine,  41,  2  Atl.,  545 814 

Cole  V.  Cole,  142  111.,  19,  19  L.  R.  A.,  811 535 

Colvin  V.  Williams,  3  Harris  &  Johnson    (Md.),  38 242 

Com.  V.  Bonner,  9  Mete.   (Mass  ),  410.... 489,493,494 

V.  Brigham,  147  Mass.,  415,  18  N.  E.,  167 678 

V.  Chapman,  13  Mete    (Mass.),  75 487 

— V.  Dougherty,  137  Mass.,  245 194 

V.  Hudson,  11  Gray   (Mass.),  64 880,882 

V.  Knowlton,  2  Mass.,  530 85 

V.  Lavery,  101  Mass.,  207 454 

V.  Leonard,  140  Mass.,  473,  4  N.  E.,  96,  54  Am.  Rep.,  485....       864 

V.  Morihan,  4  Allen  (Mass.),  587 454 

V.   Proprietors,  2  Gray    (Mass.),  339 987 

-v.  Pulaski  Agr.  Assn.,  92  Ky.  197,  17  S.  W.,  442 984,  986,  987 

V.   Snelling.  15  Pick.    (Mass.),  337 487,489,493 

• V.  Sullivan,  5  Allen   (Mass.),  511 194 

■ V.  Tay,  170  Mass..  192,  48  N.  E.,  1086 194 

V.  Tolliver,  8  Gray   (Mass.),  386 454 


xxvi  I  EXTRATERRITORIAL  CASES. 

Page. 

V.  Tuck,  20  Pick.  (Mass.),  356 636 

V.  Turnpike  Co.,  2  Va.  Cas.,  362 985 

V.  Webster,  5  Cush.  (Mass.),  295,  52  Am.  Dec,  711 679 

V.  White,  110  Mass.,  407 132 


Cone  V.  Russell,  48  N.  J.,  Eq.,  208,  21  Atl.,  847 730 

Conn  V.  Conn,  23  Or.,  452,  30  Pac,  330 513 

Connett  v.  Connett,  81  Neb.,  777,  116  N.  W.,  658 837 

Consumers'  Oil   Co.  v.   Nunnemaker,   142  Ind.,  560,  41   N.   E., 

1048  829 

Cook  V.  State,  71  Neb.,  243,  98  N.  W.,  810 127 

Cook  V.  United  States,  138  U.  S.,  157,  181,  34  L.  ed.,  906 50 

Cooper  V.  Lloyd,  6  C.  B.  N.  S.,  519 935 

Copp  V.  Colorado  etc.  Co.,  46  N.  Y.  Supp.,  542,  20  Misc.,  702....  731 

Corbett   V.   Nutt,    18    Gratt.    (Va.),    624,   633 670 

Courtwright  v.  Water  &  Mining  Co.,  30  Cal.,  573 880 

Covington    Stock   Yards   Co.  v.   Keith,   139   U.   S.,   128,   35   L. 

ed.,   73 606 

Cox  V.  Ellsworth,  18  Neb.,  664,  26  N.  W.,  460 651 

Cox  V.  Pennsylvania  R.  Co.   (Pa.),  85  Atl.,  863 609 

Cox  V.  Royal  Tribe,  42  Or.,  365,  71  Pac,  73 673 

Coxe  V.  Gulick,  10  N.  J.  L.,  328 381 

Craig  V.  Weitner,  33  Neb.,  484,  50  N.  W.,  442 747 

Cream  City  Co.  v.  Friedlander,  84  Wis.,  53,  54  N.  W.,  28 921 

Cramer  v.  Higginson,  6  Fed.  Cas.,  797 266,267 

Crow  V.  State,  41  Tex.,  468 624 

Crowe  V.  Lewin,  95  N.  Y.,  423 585 

Cunningham  v.  Rodgers,  Wash.  L.  Rep.  XLVIII,  216 Ill 

Curley  v.  U.  S.,  130  Fed.,  1 903 

Cutler  V.  Dix,  67  Vt.,  347,  31  Atl.,  780 746,  747 

D. 

Daggett  V.  Johnson,  49  Vt.,  345 968 

Dalpine  v.  Lume,  145  Mo.  App.,  549,  122  S.  W.,  776 943 

Dalrymple  v  Gamble,  66  Md.,  298,  7  Atl.,  683,  8  Atl.,  468 913 

Daniels  v.  Barney,  22  Ind.,  207 645 

Darst  v.  Alkali  Works,  81  Fed.,  284 977 

Davie  v.  Briggs,  97  U.  S.,  628,  24  L.  ed.,  1084 651 

Davis  V.  A.  Booth  &  Co.,  131  Fed.,  31 766 

Davis  V.  Kerr,  3  N.  Y.  App.  Div.,  322,  38  N.  Y.  Supp.,  387 888 

Davis  V.  Wells,  104  U.  S.  159,  26  L.  ed.,  686 268 

Davis  V.  U.  S.,  107  Fed.,  753 799 

Davis  V.  Whitlock,  90  S.  C.  233,  73   S.,  E.  174 324 

Davis  V.  Williams,  57  Miss.,  843 843 

Davis  County  v.  Horn,  4  G.  Greene   (la.),  94 876 

De  Briar  v.  Minturn  1  Cal.,  450 731 

De  Geofroy  v.  Riggs,  133  U.  S.,  258,  33  L.  ed.,  642 61 

De  Lovio  v.  Boit,  2  Gall.  (U.  S.),  398 20 


REFERENCES.  XXVll 

Page. 

Delafield  v.  Illinois,  2  Hill    (N.  Y.),   159 880 

Delesdernier  v.  Delesdernier,  45  La.  Ann.,  1364,  14  So.,  191 917 

Dement  v.  Adm'r.,  13  Ala.,  140 880 

Deputy  V.  Kimmell,  (W.  Va.),  89  S.  E.,  919,  51  L.  R.  A.  (N.  S.), 

989  59a 

De  Ruitter  v.  De  Ruitter,  28  Ind.  App.  9,  62  N.  E.,  100 908 

Derfflinger,  The,  (No.  1),  3  Brit.  &  Col.  Prize  Cas.,  389  (1916)..  105 
Desmond-Dunne  Co.  v.  Friedman-Doscher  Co.,  162  N.  Y,,  486, 

56  N.  E.,  995 747 

De  Vaux  v.  Salvador,  4  Ad.  &  Ell.,  420 21 

Devonald  v.  Rosser,  L.  R.  (K.  B.  Div.  1906),  vol  2,  p.  728 463 

Dewey  v.  Whitney,  93  Fed.,  533  (affirming  85  Fed.,  325) 947 

Diamond  Match  Co.  v.  Roeber,  106  N.  Y.,  473,  31  N.  E.,  419,  60 

Am.  Rep.,  464 766 

Dickson  v.  Kittson,  75  Minn.,  168,  77  N.  W.,  820 730 

District  Township  v.  City  of  Dubuque,  7  la.  262 710 

Doe  V.  Barnes,  M.  &  Rob.,  389 VOO 

Doe  dem.  Birtwhistle  v.  Vardell,  5  B  &  C,  451 81 

Doll  V.   Noble,   116   N.   Y.,   230,   22   N.   E.,   406 968 

Dorr  V.  U.  S.,  195  U.  S.,  138,  49  L.  ed.,  128 50,478 

Doud  V.  National  Park  Bank,  54  Fed.,  846  265 

Douglass  V.  Reynolds,  7  Pet.  (U.  S.),  113,  8  L.  ed.,  626 266,958 

Douville  V.  Merrick,  25  Wis.,  688 --  644 

Downes  v.  Bidwell,  182  U.  S.,  244,  45  L.  ed.,  1088 50,  422 

Dr.  Munroe's  Case,  5  Madd.,  379 142 

Drake  v.  Stewart,  76  Fed.,  140 794 

Drakesboro  etc.  Co.  v.  Brashears,  144  Ky.,  39,  137  S.  W.,  765....  946 

Draycott  v.  Talbot,  3  Brown  P.  C.   (2nd  ed.),  564 700 

Drew  V.  Goodhue,  74  Vt.,  436,  52  Atl.,  971 747 

Drummond  v.  Prestman,  12  Wheat  (U.  S.),  515,  6  L.  ed.,  712..  958 

Durant  v.  Starr,  11  Mass.,  527 649 

Durfree  v.  Abbott,  61  Mich.,  471,  28  N.  W.,  521 700 

Durkee  v.  Carr,  38  Or.,   189,  63  Pac,   117 346 

Dwight  V.  Simon,  4  La.  Ann.,  490 913 

E. 

Eastman  v.  Plumer,  46  N.  H.,  464 944 

Eaton  V.  Brown,  193  U.  S.,  411,  48  L.  ed.,  730,  9  Prob.,  627 627 

Eberts  v.  Fisher,  44  Mich.,  551,  7  N.  W.,  211 895 

Eckford  v.  Knox,  67  Tex.,  200,  2  S.  W.,  372 756 

Edwards  v.  Seaboard  R.  Co.,  121  N.  C,  490,  28  S.  E.,  137 731 

Edwards  v.  State,  38  Tex.  App.,  386,  39  L.  R.  A.,  262 417 

Eliason  v.  Henshaw,  4  Wheat.  (U.  S.),  225,  4  L.  ed.,  556 1009 

Ellison  V.  Martin,  53  Mo.,  575 482 

Elzoy  V.  Elzoy,  1  Houston  (Del.)  308 324 

Embrey  v.  Jemison,  131  U.  S.  336,  33  L.  ed.,  172 115, 116 

Emerine  v.  Tarault,  219  Fed.,  68 900 


XXViii  I  EXTRATERRITORIAL  CASES. 

Papre. 

Erber  v.  U.  S.,  234  Fed.,  221 796 

Estate  of  Billings,  64  Cal.,  427 843 

Estate  of  Healy,  122  Cal.,  162 419 

Estate  of  Plumel,  151  Cal.,  77,  121  Am.  St.  Rep.,  100 843 

Estate  of  Rand,  61  Cal.,  468,  44  Am.  Rep.,  555 843,  939 

Essex  V,  Day,  52  Conn.,  483,  1  Atl.,  620 945,946 

Eumeaus,   The,   1   Brit.   &  Col.   Prize  Cas.,   615 106 

Eureka  Laundry  Co.  v.  Long,  146  Wis.,  205,  131  N.  W.,  412...  826 

Evans  v.  R.  Co.,  24  Mo.  App.,  114 731 

Everson  v.  Granite  Co.  65  Vt.,  658,  27  Atl.,  320 580 

Ex  Parte  Bell,  1  Mau.  &  Sel.,  752 644 

Bollman,  4  Cranch  (U.  S.),  75,  2  L.  ed.,  561 879 

Bradley,  7  Wall.    (U.  S.),  364,  19  L.  ed.,  219 867 

Cunningham,  In  re  Mitchell,  13  Q.  B.  Div.  418 149 

Fisk,  113  U.  S.,  713,  28  L,  ed.,  1117 811 

Grayson,    215   Fed.,    449 420 

Heath,  3  Hill  (N.  Y.),  42,  51 876,880 

Norvell,  20  D.  C,  353 405 

Robinson,  19  Wall.    (U.  S.),  513,  22  L.  ed.,  205 867 

Secombe,  19  How.   (U.  S.),  9,  15  L.  ed.,  565 867 

Tuftnel,  4  D.  &  C,  29 390 

U.  S.,  242  U.  S.,  27,  61  L.  ed.,  129 689 

Wall,  107  U.  S.,  265,  27  L.  ed.,  552 835,836,852 

Walls,  64  Ind.,  461 836 

F. 

Faikney  v.  Reynous,  4  Burr.,  2069 646 

Fairbanks  v.  Blackington,  9   Pick.    (Mass.),  93 644 

Farlie  v.  Fenton,  L.  R.  5  Exch.  Cas.,  169 438,  439 

Farmer  v.  Russell,  1  Bos.  &  Pul.,  295 643,646 

Farmer  v.  St.  Paul,  65  Minn.,  176,  33  L.  R.  A.,  199,  67  N.  W., 

990,    992 ^ 542 

Farrar  v.  Churchill,  135  U.  S.,  609,  34  L.  ed.,  246,  10  S.  Ct.,  771..  908 

Farnsworth  v.  Duffner,  142  U.  S.,  43,  35  L.  ed.,  981 946 

Fennessey  v.  Ross,  39  N.  Y.  Supp.,  323 730 

Fenwick  v.  Schmalz,  L.  R.  3  C.  P.,  313 303 

Ferguson  v.  Southern  R.  Co.,  91  S.  C,  61,  74  S.  E.,  129 608 

Ferlat  v.  Gojon,  1  Hopkins  Chancery,  478,  14  Am.  Dec,  554 323 

Field  V.  Eaton,  16  N.  C,  283 896 

Field  V.  Munster,  11  Tex.  Civ.  App.,  341,  32  S.  W.,  417 595 

Filley  v.  Pope,  115  U.  S.,  213,  29  L.  ed.,  372 769 

Finger  v.  Brewing  Co.,  13  Mo.  App.,  310 731 

First  National  Bank  v.  Carroll,  80  la.,  11,  45  N.  W.,  304,  8  L. 

R.   A.,   276 - 117 

First  Nat'l  Bank  v.  Hubbard,  49  Vt.,  1,  24  Am.  Rep.,  97 880 

First  Nat.  Bank  v.  Whitman,  94  U.  S.,  343,  24  L.  ed.,  229 108 

Fisheries  Co.  v.  Lennen,  116  Fed.,  217 766 


REFERENCES.  XXIX 

Page. 

Fitzgerald,  In  re  (1903),  1  Ch.,  941 83 

Fivaz  V.  NichoUs,  2  Man.  G.  &  S.,  501,  513,  52  Eng.  Com.  L., 

500 644 

Fivey  v.  R.  Co.,  67  N.  J.  L.,  627,  52  Atl.,  472 907-908 

Flagstaff,  etc.  Co.  v.   Patrick,  2   Utah,  304 730 

Fleener  v.  State,  58  Ark.,  98,  23  S.  W.,  1 684,  685 

Flemister  v.  United  States,  207  U.  S.,  372,  52  L.  ed.,  252 330 

Flourney  v.  State,  16  Tex.,  31 625 

Floyd  V.  Clayton,  67  Ala.,  266 913 

Fonner  v.  Smith,  31  Neb.,  107 108 

Forbes  v.  Forbes,  Kay,  356,  23  L.  J.  Ch.,  724 150 

Forbes  v.  Scannell,  13  Cal.,  242,  285 85 

Fowle  V.  Park,  131  U.  S.,  88,  S3  L.  ed.,  67 824 

Frary  v.  Rubber  Co.,  52  Minn.,  264,  53  N.  W.,  1156 968 

Freeman  v.  Venner,  120  Mass.,  424 997 

Frey-Scheckler  Co.  v.  Iowa  Brick  Co.,  104  la.,  494,  73  N.  W., 

1051   921 

Fuentes  v.  Gaines,  25  La.  Ann.,  87 849 

Fusselier  v.  Masse,  4  La.,  423 756 

G. 

G-  V.  G-,  67  N.  J.  Eq.,  30,  56  Atl.  Rep.,  736 534 

Gage  V.  Fisher,  5  N.  D.,  297,  65  N.  W.,  809 730 

Gage  V.   Phillips,  21  Nev.,  150,  26  Pac,  60 907,  908 

Gaines  v.  New  Orleans,  6  Wall.  (U.  S.),  642,  18  L.  ed.,  962 653 

Gallagher  v.  U.  S.,  144  Fed.,  87 555 

Garrett  v.  People's  Ry.  Co.,  (Del.),  64  Atl.,  254 559 

Garrison  v.  U.  S.,  7  Wall.,  688,  19  L.  ed.,  277 302 

Gaunt  V.  State,  50  N.  J.  L.,  490 845 

Gavieres  v.  United  States,  220  U.  S.,  338,  55  L.  ed.,  489 330 

Gelston  v.  Hoyt,  3  Wheaton  246,  4  L.  ed.,  381 260 

Georgia  etc.  R.  Co.  v.  Barfield  (Ga.,  1907),  58   S.  E.,  236 608 

Gerhard  v.  Ford  Motor  Co.,  155  Mich.,  618,  119  N.  W.,  904,  20 

L.  R.  A.    (N.  S.),  2.33 593 

Germain  Fruit  Co.  v.  Western  Union  Tel.  Co.,  137  Cal.,  598,  70 

Pac,    658 588 

Germania  Ins.  Co.  v.  Ross-Lewin,  24  Col.,  43,  51  Pac,  488 673 

Gibbs  V.    Gibbs,  26    Utah,    382,   73    Pac,   641 482 

Gibbs  V.  Linabury,  22  Mich.,  479,  7  Am.  Rep.,  675 908 

Gibson  v.  Gibson,  28  Gratt.  (Va.),  44 843 

Gilbank  v.  Stephenson,  31  Wis.,  592 928 

Gill  V.  Clagett,  4  Md.  Ch.,  470 944 

Gillespie  v.  Battle,  15  Ala.,  276 730 

Gilliam  v.  Brown,  43  Miss.,  641 646 

Gilman  v.  Gilman,  52  Me.,  165,  83  Am.  Dec,  502 95,  138 

Gilmer  v.  Stone,  120  U.  S.,  586,  30  L.  ed.,  734 697 

Godfrey  v.  Roessle,  5  Appeal  Cases   (D.  C),  299 766 


XXX  I  EXTRATERRITORIAL  CASES. 

Goodtitle  v.   Welfred,  Douglass,   139 649 

Goodwin  v.  Baltimore  etc.  Co.,  50  N.  Y,,  154 90 

Gordon  v.  People,  33  N.  Y.,  501 902 

Gould  V.  Dodge,  30  Wis.,  621 880,  883 

Gould  V.  Hayes,  19  Ala.,  438 880 

Goundie  v.  Northampton  Water  Co.,  7  Pa.  St.,  233 760 

Governor  v.  Whithers,  5  Gratt.   (Va.),  24,  50  Am.  Dec,  95 569 

Govier  v.  Hancock,  7  T.  R.,  603 935 

Grafton  v.  United  States,  206  U.  S.,  333,  51  L.  ed.,  1084 406 

Graham   v.   Guinn,   43   S.   W.    (Tenn.),   749 945 

Grand  Lodge  v.  Wieting,  168  111.,  408,  48  N.  E.,  59 673 

Grant  v.   Todd,   L.   R.,   9   Appeal   Cases,   470 303 

Gravelle  v.  Minneapolis,  etc.,  R.  Co.,  10  Fed.,  711,  3  McCrary, 

352    558 

Graysbrook  v.   Fox,  1   Plowd.,  275 913 

Greathouse  v.  Heed,  1  Idaho,  494 883 

Greene  v.  Bateman,  2  Woodb.  &  M.,  359,  10  Fed  Gas.,  1126....  584 

Greer  v.  Arlington  etc.  Co.,  1  Penne.  (Del.),  581,  43  Atl.,  609....  731 

Gregory  v.  Slaughter,  124  Ky.,  358,  99  S.  W.,  248 559 

Griefswald,  The,  Swab.  Adm.  Rep.,  430 20 

Grier  v.  Samuel,  27  Del.   106,  86  Atl.,  209 591 

Griffin  v.  Griffin,  47  N.  Y.,  134 369 

Griffin  v.  Lumber  Co.,  140  N.  C,  514,  53  S.  E.,  307 908 

Griffin  v.  O'Neil,  48  Kan.,  117,  29  Pac,  143 580 

Grignon's  Lessees  v.  Astor,  2  How.  (U.  S.),  319,  11  L.  ed.,  283..  639 

Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  ed.,  798 946 

Gsell  V.  Insular  Collector,  239  U.  S.,  93,  60  L.  ed.,  163;  affirm- 
ing 24  Phil.,  369 659 

Guernsey  v.  Cook,  120  Mass.,  501,  117  Mass.,  548 730 

Gulf  etc.   R.  Co.  V.  Jackson,  29  Tex.  Civ.  App.,  342,  69  S.  W. 
89  _ 977,978 

H. 

Habberfield   v.   Browning 627 

Hadley  v.  Baxendale,  2  C.  L.  R.,  517,  9  Exch.,  341,  18  Jur.,  358, 
23  L.  J.  Exch.,  179,  2  Wkly.  Rep.,  302,  26  Eng.  L.  &  Eq.,  398, 

5  Eng.  Ruling  Cases,  504 740,922,976 

Hahn  v.  Kelly,  34  Cal.,  391,  94  Am.  Dec,  742 476 

Hall  V.  Stephens,  65  Mo.,  670,  27  Am.  Rep.,  302 896 

Hall  &  Holtz,  Ltd.  v.  Tozer,  North  China  Herald,  LXXX,  94....  821,  823 

Hall  Mfg.  Co.  v.  Western  Steel  &  Iron  Works,  227  Fed.,  588..  829 

Hallowell  v.  Hallowell,  88  Ind.,  251 648 

Hallowell  v.  United  States,  221  U.  S.,  317,'  55  L.  ed.,  750 313 

Hanauer  v.  Doane,  12  Wall.  (U.  S.),  342,  20  L.  ed.,  439 428 

Haney   v.    Caldwell,    35    Ark.,    156 731 

Hannigan  v.  Wright,  5  Pennewell  (Del.),  537,  63  Atl.,  234 592,593 

Hanson  v.  Hanson,  78  Neb.,  584,  111  N.  W.,  368 928 


REFERENCES.  XXXI 

Page. 

Hanson  v.  Watson,  North  China  Herald,  Oct.  8,  1899 80,  389 

Harman  v.  Maddy,  57  W.  Va.,  66 946 

Harper  v.  Hassard,  113  Mass.,  187 731 

Harran  v.  Foley,  62  Wis.,  584,  22  N.  W.,  837 581 

Harris  v.  Columbiana  Co.,  18  Ohio,  116,  51  Am.  Dec,  448 945 

Harris  v.  Pepperell,  L,  R.,  5  Eq.  Cas.,  1 582 

Harris  v.  Runnels,  12  How.   (U.  S.),  79,  13  L.  ed.,  901 760 

Harris  v.  Scott,  67  N.  H.,  437,  32  Atl.,  770 730 

Harrison  v.  Glucose  Sugar  Refining  Co.,  116  Fed.,  304,  58  L. 

R.   A.,   915 766,  822 

Harrisburg  Lumber  Co.  v.  Washburn,  29  Or.,  150,  44  Pac,  390..  921 

Hartford  etc.  Co.  v.  Jackson,  24  Conn.,  514 585 

Harvard  College  v.  Gore,  5  Pick.  (Mass.),  370 139,140 

Hastelow  v.  Jackson,  8  B.  &  C,  221 643 

Hauenstein  v.  Lynham,  100  U.  S.,  483,  25  L.  ed.,  628 381 

Hawkins  v.  Garland's  Admr.,  76  Va.,  149 697 

Hawley  v.  Brown,  1  Root  (Conn.),  494 649 

Hay  V.  Le  Neve,  2  Shaw's  Scotch  H.  L.  App.,  395 21 

Hayden  v.  Androscoggin  Mills,  1  Fed.,  93 639 

Hays  V.  McNealy,  16  Fla.,  409 880 

Hayward  v.  N.  J.  St.  Ry.  Co.   (N.  J.  65  Atl.),  737,  8  L.  R.  A. 

(N.   S.) ,     1062 592 

Hearne  v.   De   Young,   119   Cal.,   670 494 

Hearne  v.  Insurance  Co.,  20  Wall  (U.  S.),  488,  22  L.  ed.,  395....  944 

Heatherwick   v.   Heatherwick,   32   111.,   73 370 

Heike  v.  U.  S.,  192  Fed.,  83 801 

Heine  Safety  Boiler  Co.  v.  Francis  Bros.  &  Jollett,  117  Fed.,  235  747 

Heirs  of  McMichael  v.  Bankston,  24  La.  Ann.,  451 843,  939 

Heirs  of  Williams  v.  Hardy,  15  La.  Ann.,  286 843 

Henderson  v.  Kennedy,  9  Kan.,  113  (163) 883 

Henkel  v.  Paper,  L.  R.,  6  Exch.,  7,  40  L.  J.  (Part  2),  15 „...  586 

Hennessey  v.  Taylor,  189  Mass.,  583,  3  L.  R.  A.  (N.  S.),  345,  76 

N.   E.,   224 593 

Herreschoff  v.  Boutineau,  17  R.  I.,  3,  19  Atl.,  712,  8  L.  R.  A., 

469,    33    Am.    St.    Rep.,    850 766 

Higginbotham  v.  State,  23  Tex.,  575 623 

Higgins  v.  Parsons,  65  Cal.  280,  3  Pac,  881 945 

Hillsdale  Coal  &  Coke  Co.  v.  Pennsylvania  R.  Co.,  229  Pa.,  61, 

78  Atl.,  28 611 

Hight  v.  Bacon,  126  Mass.,  10,  30  Am.  Rep.,  639 569 

Hilton  V.  Roylance,  25  Utah,  129,  69  Pac,  660,  58  L.  R.  A., 

723,  95  Am.  St.  Rep.,  821 367 

Hitchcock  V.  Supreme  Tent,  100   Mich.,  40,  58   N.  W.,  640 612 

Hobart   v.    Hobart,    45    la.,    501 928 

Hochster  v.  De  la  Tour,  2  El.  &  Bl.,  678 977 

Hockaday  v.  Lynn,  200  Mo.,  456,  98  S.  W.,  585,  8  L.  R.  A.  (N. 

S.),  117,  118  Am.  St.   Rep.,  672 756 

14008  O.  W. iii 


XXXii  I  EXTRATERRITORIAL  CASES. 

Page. 

Hogan  V.  Stophlet,  179  111,  150,  44  L.  R.  A.,  809 362 

Hogg  V.  Chu  Fu-fu,  North  China  Herald,  September  5,  1900.-  78 

Honeyman  v.  Marrayat,  6  H.  L.  C,  112 1008 

Hooper  &  Ashey  v.  Willis,  21  T.  L.  R.,  691,  affirmed  22  T.  L, 

R.,  451 829 

Hornbuckle  v.  Toombs,  18  Wall.,  648,  21  L.  ed.,  966 177 

Hotchkiss  V.  Gretna  Co.,  36  La  Ann.,  517 968 

Houston  etc.  R.  Co.  v.  Campbell,  91  Tex.,  551,  45  S.  W.,  2 611,  613 

Houston  etc.,  R.  Co.  v.  Hill,  70  Tex.,  51,  7  S.  W.,  659 611,  612 

Hovey  v.  McDonald,  109  U.  S.,  150,  27  L.  ed.,  888,  3  Sup.  Ct.,  136  876 

Howard  v.  East  Tennessee  etc.  R.  Co.,  91  Ala.,  268,  8  So.,  868..  731 

Huber  v.  Jackson  &  Sharp  Co.,  1  Marv.  (Del.),  374,  41  Atl.,  92..  594 

Hughey  v.  Smith,  65  Or.,  323,  133  Pac,  68 947 

Huggins  V.  People,  135  111.,  243,  25   N.   E.,  1002,  25  Am.   St. 

Rep.,  357 864 

Hume  V.  U.  S.,  132  U.  S.,  406,  33  L.  ed.,  393 584,  945,  946 

Hummer  v.  Hummer,  3  G.  Greene  (la.),  42 880,881 

Humphrey  v.  Wade,  70  N.   C,  280 880 

Hunt  V.  Crane,  33  Miss.,  669 977 

Hunt  V.  Hunt,  4  N.  H.,  438,  17  Am.  Dec,  434 715 

Hunt  V.  Palo,  4  How.   (U.  S.),  589,  11  L.  ed.,  1115 405 

Hunt  V.  Supreme  Council,  64  Mich.,  671,  31  N.  W.,  576 700 

Hutchins  v.   Kimmell,  31   Mich.,   125 700 

Hutkopf  V.  Demorest,  103  N.  Y.,  377,  8  N.  E.,  899,  10  N.  E., 

535  475 

I. 
Imperial  Japanese  Government  v.  Peninsular  &  Oriental  Com- 
pany,   1895,    A.    C,    644 31,739 

India,  The,  49  Fed.,  76 303 

Indian    Chief,    The,   3    Rob.   Adm.,   29 23,99,145,  147 

Inland  etc.  Coasting  Co.  v.  Tolson,  139  U.  S.,  551,  35  L.  ed., 

270    559 

In  re  Ah  Yup,  5  Sawy.,  155,  1  Fed.  Cas.,  223 701 

In  re  Alexander,  1  Lowell  (U.  S.),  470,  1  Fed.  Cas.,  351 900 

In  re   Attorney-General,   2    N.    M.,    49 710 

In  re  Barton's  Estate,  52  Cal.,  538 627,  628 

In  re  Ben  Hope  Lee's  Estate,  U.  S.  Ct.  for  China,  No.  71 701 

In  re  Certain  Trusts,  North  China  Herald,  CXII,  66,  (July  4, 

1914)     389 

In  re  Christensen,  17  Utah,  412,  53  Pac,  1003,  70  Am.  State 

Rep.,  794,  41  L.  R.  A.,  504 369 

In  re  Conway,  124  N.  Y.,  455,  11  L.  R.  A.,  796,  26  N.  E.,  1028..  648 

In  re  Fouche's  Estate,  147  Pa.,  395,  23  Atl.,  547 715 

In  re   Grayson,   3    Indian    Ter.,   497 658 

In  re  Gorkow's  Estate,  20  Wash.,  563,  56  Pac,  385 697 

In  re  Gruendike's  Estate,  154  Cal.,  628,  98  Pac,  1057 888 


REFERENCES.  XXXlll 

Page. 

In  re  Howe,  26  Or.,  181,  37  Pac,  537 398 

In  re  Holmberg's  Estate,  193  Fed.,  260 719 

In  re  Jones'  Estate,  211  Pa,  St.,  364,  69  L.  R.  A.,  940,  60  Atl., 

915,  107  Am.  St.  Rep.,  581,  3  Ann.  Cas.,  221,  10  Prob.  Rep. 

Ann.,  490  (affirming  29  Pa.  Co.  Ct.,  593) 888,889 

In  re  Jordan,  90  Mich.,  3,  50  N.  W.,  1087 193 

In  re  Ladd's  Estate,  94  Cal.,  670 894 

In  re.  Look  Tin  Sing,  21  Fed.,  905 702,  710 

In  re  Mclntyre  &  Co.,  181  Fed.,  955 391 

In  re  Meyers'  Estate,  113  N.  C,  545,  18  S.  E.,  689 628 

In  re  Osterhaus,  18  Fed.  Cases,  894 405 

In  re  Pennewell,  119  Fed.,  139 997 

In  re  Pepin's  Estate,  53  Mont.,  240,  163  Pac,  104 754 

In  re  Potter,  85  Wash.,  617,  149  Pac,  23 754 

In  re  Rahrer,  140  U.  S.,  545,  35  L.  ed.,  572 315 

In  re  Ralston,  9  Pa.  Dist.  Ct,  514 „...       673 

In  re  Roberts'  Will,  U.  S.  Court  for  China,  May  15,  1907..  106, 110, 145 

292, 525, 710 

In  re  Ross,  44  Fed.,  185 46,  48 

In  re  Seaman's  Estate,  146  Cal.,  455,  10  Prob.  Rep.  Ann.,  255, 

80   Pac,   700 648 

In  re  Schnitzer,  33  Nev.,  581,  112  Pac,  848 852 

In  re  Snook,  2  Hilt.,  566 817 

In  re  Soher,  78  Cal.,  477,  21  Pac,  8 894 

In  re  Terrell,   2   Philippine,   266 835,852 

In  re  Tootal's  Trusts,  L.  R.,  23  Ch.  D.,  532 98, 104, 105 

137, 139, 141, 143, 145, 146,  147 

In  re  Ulmer,   208   Fed.,   461 836,  852,  867 

In  re  Utz's  Estate,  43  Cal.,  200,  204 895 

In  re  Wolf,  27  Fed.  Rep.,  606 478 

In  re  Woodbridge's  Estate  (U.  S.  Ct.  for  China) 525 

In  re    Ziegler,  143  N.  Y.  S.,  562,  82  Misc.,  346 755 

Ins.  Co.  V.  Nelson,  103  U.  S.,  544,  26  L.  ed.,  436 909 

International  etc.   R.   Co.  v.   Nicholson,   61   Tex.,   550 595 

Irwin  V.  Judge,  81  Conn.,  492,  71  Atl.,  572 559 

Irwin   V.   Williar,   110    U.    S.,    509,   28    L.   ed.,    225 115,116,230 

J. 

J.  Thompson  Mfg.  Co.  v.  Gunderson,  106  Wis.,  449,  82  N.  W., 

299 921 

Jackson  v.  Jackson,  6  Dana  (Ky.),  257 715 

Jackson  v.  Rogers,  2  Show,  327,  89  Eng.  Reprint,  965 606 

Jageman  v.  Necco  (Tex.  Civ.  App.),  59  S.  W.,  822 645 

James  v.  Cutler,  54  Wis.,   172,  10  N.  W.,   147 945 

Jarret  v.  Phillips,  90  111.,  238 529 

Jefferson  Hotel  Company  v.  Brumbaugh,  168  Fed.,  867 1005 


XXxiv  I  EXTRATERRITORIAL  CASES. 

Page. 

Jenks  V.  State,  63  Ark.,  312,  39  S.  W.  Rep.,  361 453,456 

Johnson  v.  Happell,  4  Tex.,  96 880 

Johnson  v.  Powers,  139  U.  S.,  156,    35  L.  ed.,  112 Ill 

Jones  V.  Boston  Mill  Corp.,  4  Pick.,  507,  16  Am.  Dec,  358 876 

Jones  V.  Dale,   16    Ontario,   717 944 

Jones  V.  Jones,  35  N.  C,  449 361 

Jones  V.  Lees,  1  H  &  N.,  189 766 

Jones  V.  Reed,  3  Wash.,  57,  27  Pac,  1067 880 

Jones  V.  Transp.  Co.,  51  Mich.,  539,  16  N.  W.,  893 968 

Joplin   Mercantile  Co.  v.   U.   S.,  213   Fed.,   926 987 

K. 

K.  P.  R.  Co.  V.  Roberson,  3   Col.,  142 731,  732 

Kathmeyer  v.  Mehl,   (N.  J.),  60  Atl.,  40 592 

Kauffman  v.  Leonard,  139  Mich.,  104,  102  N.  W.,  632 _ 991 

Keliher  v.  U.  S.,  193  Fed.,  8 792 

Kelly  V.  Owen,  7  Wall.,  496  19  L.  ed.,  283 318 

Kennedy  v.  Doyle,  10  Allen,  161,  Thayer's  Cases  on  Evidence, 

437    700 

Kennett  v.  Chambers,  14  How.   (U.  S.),  38,  14  L.  ed.,  316....  260,642 

Kerr  v.  Shine,  136  Fed.,  61 402,407 

Kessler  v.  Washburn,  157  111.  App.,  532 591 

Kiewert  v.  Rindskopf,  46  Wis.,  481,  32  Am.  Rep.,  731,  1  N.  W., 

163    644 

Kimberly  v.  Arms,  129  U.  S.,  512,  32  L.  ed.,  764 928 

Kimmans    v.    Chandler,    13    Iowa,    327 997 

King    V.    Batterson,    13    R.    I.,    117 959 

King  V.  Inhabitants,  Clifton,  5  D.  &  E.,  499 985 

King  V.  Inhabitants,  West  Riding,  Yorkshire,  2   Black,  685....  985 

Kingen  v.  Kelley,  3  Wyo.,  566,  15  L.  R.  A.,  177 399 

Kirby  v.  Tallmadge,  160  U.  S.,  379,  40  L.  ed.,  463 — .  552,  795 

'Kirk  V.   Hartman,   63   Pa,   St.,   97 731 

Kittredge    v.    Folsom,    8    N.    H.,    98 913 

Klein  v.  State,  9  Ind.  App.,  365,  53  Am.  St.  Rep.,  354,  36  N.  E., 

763    131 

Kline  v.  Wood,   9   S.  &  R.    (Pa.),  294 880 

Knapp  V.  S.  Jarvis  Adams  Co.,  135  Fed.,  1008 825 

Koons    V.    Dyer,    Morris    (la.),    127 872,880 

Kramer  v.  Wolf  Cigar  Stores  Co.,  99  Tex.,  597,  91  S.  W.,  775, 

777  805 

Lackland  v.  Nevins,  3  Mo.  App.,  336 845 

Lampe  v.  Jacobsen,  46  Wash.,  533,  90  Pac,  654 593 

Langforth  Bridge  Case,  Cro.  Car.  565 985 

Lanning  v.  Sisters  of  St.  Francis,  35  N.  J.  Eq.,  392 _ 696 

La  Point  v.  Scott,  36  Vt.,  603 346 

Larkin  v.  Radosta,  119  N.  Y.  App.  Div.,  515 346 


REFERENCES.  XXXV 

Page. 

Larner  v.  N.  Y.  Transp.  Co.,  133  N.  Y.  Suppl.,  743 592 

Larrison  v.  Larrison,  20  N.  J.  Eq.,  100 496 

LaRue  v.  Lee,  63  W.  Va.,  388,  60  S.  E.,  388,  13  Prob.  Rep., 

442  894 

Lathoarp  v.  Bryant,  2  Bing.  (N.  Cas.)   735,  3  Scott,  238 242 

Lauson  v.  Fond  du  Lac,  141  Wis.,  57,  123  N.  W.,  629 559 

Lawrence  v.  McAlmont,  2  How.   (U.  S.)   426,  13  L.  ed.,  497 268 

Lawson  v.  Dawson,  21  Tex.  Civ.  App.,  361,  53  S.  W.,  64 648 

Lawson    v.    State,    30    Ala.,    14 623 

Laycock  v.  Moon,  97  Wis.,  59,  72  N.  W.,  372 921 

Leatherberry  v.  Odell,  7  Fed.,  641 804,  969 

Leather  Cloth  Co.  v.  Lorsont,  L.  R.  9  Eq.,  345 824 

Leathers  v.   Greenacre,   53   Me..   561 ^27 

Lefevre  v.  Lefevre,  59  N.  Y.,  434 697 

Leidigh  v.  Keever,  2  Neb.   (Unoff.),  343,  96  N.  W.,  106 946 

Leisy  v.  Hardin,  135  U.  S.,  100,  34  L.  ed.,  128 315 

Le  Mayne  v.  Stanley,  3  Lev.,  1,  83  Eng.  Reprint,  545 648 

Lemon  v.  Grosskopf,  22  Wis.,  447,  99  Am.  Dec,  58 644 

Leonard  v.  Grant,  6  Sawyer,  603,  5  Fed.,  11 318 

Leroy  v.  Clayton,  2  Sawy.,  493,  15  Fed.  Cas.,  358,  360  639 
Lesser  v.  Gilbert  Mfg.  Co.,  72  N.  Y.  App.  Div.,  147,  75  N.  Y., 

Supp.,  486 806 

Lestrade  v.   Earth,  19   Cal.,  660 946 

Lewis  V.  Lewis,  5  Or.,  169 947 

Lewis  v.  Marshall,  5  Pet.    (U.  S.),  470,  8  L.  ed.,  195 700 

Lewis  v.   R.   Co.,  5   H.   &  N.,   867 907 

Lewis  Co.  v.  Scott,  95  Ky.,  484,  26  S.  W.,  192 977 

Liebrecht  v.  Crandall,  110  Minn.,  454,  126  N.  W.,  69 591 

Lim  Teco  v.  Collector  of  Customs,  24  Phil.,  84 707 

Lock  V.  Vulliamy,  5  B  &  Ad.,  600,  27  E.  C.  L.,  255 976 

Loomis  V.  Bourn,  63  Conn.,  445,  28  Atl.,  569 880 

Lord  V.  Bldg.  Assn.,  37   Md.,  320 665 

Lord  V.  Colvin,  28  L.  J.  Ch.,  366  (1859) - 94 

Lord  V.  Goldberg,  81  Cal.,  596,  22  Pac,  1126 731 

Lord  V.   Robinson,   37   Md.,   320 760 

Lord  V.  Wood,  120  la.,  303,  94  N.  W.,  842 595 

Lorenzo  v.   Collector  of  Customs,  15   Phil.,  559 707 

Louisville  Mfg.  Co.  v.  Welch,  10  How.  (U.  S.),  461,  13  L.  ed., 

497    266 

Louisville  etc.  R.  Co.  v.  Harvey,  99  Ky.,  157,  34  S.  W.,  1069....  731,  732 
Louisville  etc.  R.  Co.  v.  Offutt,  99  Ky.,  427,  59  Am.  St.  Rep., 

467,  36   S.  W.,  181 731 

Louisville  etc.  R.  Co.  v.  Ohio  Valley  Co.,  161  Ky.,  212,  170  S.  W., 

633  - -  611 

Louisville  etc.  R.  Co.  v.  Queen  City  Coal  Co.,  99  Ky.,  217,  35 

S.    W.,    626 607 


XXXVl  I  EXTRATERRITORIAL  CASES. 

Page. 

Lowe  V.  Carter,  54  N.  C,  352 695 

Lowe  V.  Joliffe,  1  W.  Blackstone,  365 649 

Lowrey  v.  Lowrey,  108  Ga.,  766,  33  S.  E.,  421 837 

Lowry  v.  Cooper,  21  Ind.,  269 751 

Ludington  v.  Renick,  7  W.  Va.,  273 946 

Ludwig  V.  Cramer,  53  Wis.,  193,  10  N.  W.,  81 487 

Lumley  v.   Wagner,   1   De  G.  McN.   &   G.,  604 768 

Lynch  v.  Clarke.  I  Sandf.  Ch.  (N.  Y.),  583 702 

Lynch  v.  Fisk  Rubber  Co.,  209  Mass.  16,  95  N.  E.,  400 593 

Lyon  V.  Ogden,  85  Me.,  374,  27  Atl.,  258 145 

M. 

Madrigal  v.  Stevenson,  15  Philippine,  38 586 

Main  v.  Main  (N.  J.,  Ch.,  1892),  24  Atl.,  1024 496 

Maltas  V.  Maltas,  1  Rob.  Eccl.,  67 99, 145, 147, 148 

March  v.  Boyden,  33  R.  I.,  519,  82  Atl.,  393 592 

Marsh  v.  Dodge,   66  N.  Y.,  533 955 

Martin  v.  N.  Y.  L.  Ins.  Co.,  148  N.  Y.,  117,  42  N.  E.,  416 731 

Martinez  v.   Tan,  12   Philippine,  731 367 

Marvin  v.  Bennett,  26  Wend.    (N.  Y.),  169 946 

Mason  v.  Cowan,  1  B.  Mon.,  7 751 

Mason  v.  Pritchard,  12  East,  227  958 

Mathews  v.   Wallwyn,  4  Ves,   118 390 

Mathews    v.    Warner,    4    Ves.    Jr.,    186    627 

Mathewson  v.  Iron  Foundry,  20  Fed.,  281 319 

Matter  of  Acker,  5  Dem.   (N.  Y.),  19  648 

Matter  of  Davis,  45  Misc.,  554,  92  N.  Y.  SuppL,  968,  affirmed, 
105  App.  Div.,  221,  93  N.  Y.  Suppl.,  1004,  and  again  in  182 

N.  Y.,  468,  75  N.  E.,  530 628 

Matter  of  Hamilton,  10  Abb.  N.  Cas.,  79 817 

Matter  of  Nies,  13  N.  Y.  St.  Rep.,  756 628 

Mattison  v.  Mattison,  1  Strobh.  Eq.  (SC)  387,  47  Am  Dec,  541  324 

Mattox  V.  U.  S.,  156  U.  S.,  237,  39  L.  ed.,  409 849 

May  V.  May,  2  Strange.,  1073 700 

McAleer  v.  State,  46  Neb.,  116,  121,  64  N.  W.  Rep.,  358 375 

McAllister  v.  Hoffman,  16  S.  &  R.,  147 643 

McBlair  v.  Gibbes,  17  How.,  232,  15  L.  ed.,  132 643,  646 

McClure  v.  Review  Publishing  Co.,  38  Wash.,  160,  80  Pac,  303..  362 

McCrady  v.  Jones,  36  S.  C,  136,  15  S.  E.,  430 928 

McCullough  Iron  Co.  v.  Carpenter,  67  Md.,  554,  11  Atl.,  176-..  731 
McDermid  v.  McDermid,  U.  S.  Ct.  for  China,  March  18,  1907..  325,  369 

McDonald  v.  Bewick,  51  Mich.,  79,  16  N.  W.,  240 580 

McDonald  v.  Gardner,  56  Wis.,  35,  13  N.  W.,  689 747 

McDonald  v.  Shaw,  81  Ark.,  235,  98  S.  W.  952 697 

McDonough  v.   Evans   Marble  Co.,   112   Fed.,   634 842 

McGill  V.  McGill,  19  Fla.,  341 -917 


REFERENCES.  XXXVIJ 

Page. 

McGinn  v.  Tobey,  62  Mich.,  252,  28  N.  W.,  818 908 

Mclndoe   v.    St.    Louis,    10    Mo.,    575 760 

Mclntire  v.  Mclntire,  19  D.  C,  482;  162  U.  S.,  383,  40  L.  ed., 

1009  627 

McLane  v.  Maurer,  28  Tex.  Civ.  App.,  75,  66  S.  W.,  693 728 

McMullen  v.  Hoffman,  174  U.  S.,  639,  43  L.  ed.,  1117,  19  Sup. 

Ct.  Rep.,  839,  affirming  83  Fed.,  372 643 

McMullen  v.  Lookwood,  4  Del.  Ch.,  568 944 

Mehurin   v.    Stone,    37    O.    St.,    57 751 

Meincke  v.  Falk,  55  Wis.,  427,  13  N.  W.,  545 747 

Mellon's  Estate,  28  W.  N.  C,  120 888 

Merchants  National  Bank  v.  Nichols,  223  111.,  41,  79  N.  E.,  38, 

7  L.  R.  A.   (N.  S.),  753 1005 

Metzradt  v.  Modern  Brotherhood,  112  la.,  522,  84  N.  W.,  498....  673 

M'Ginley  v.  Cleary,  2  Alaska,  269 428 

Milam   v.   Stanley    (Ky.),    Ill    S.   W.,   296,   17   L.   R.   A.    (N. 

S.),    1126 715 

Miller  v.   Simpson,  107  Va.,  476,  59   S.  E.,  378,  18  L.  'R.  A. 

(N.  S.) ,  962 760 

Mills  V.  Lee,  6  T.  B.  Hon.  (Ky.),  91,  17  Am.  Dec,  118 908 

Mine  etc.  Co.  v.  Creel   (Tex.  Civ.  App.),  79  S.  W.,  67 946 

Minneapolis  v.  Reum,  56  Fed.,  57,  12  U.  S.  App.,  466,  6  C. 

C.  A.,  31 381 

Minor  v.  Stevens,  65  Wash.,  423,  118  Pac,  313,  42  L.  R.  A. 

(N.  S.) ,  1178 593 

Missouri  etc.  R.  Co.  v.  Empire  Express  Co.  (Tex.  Civ.  App.), 

173  S.  W.,  222 611 

Missouri  etc.  R.  Co.  v.  Sneed,  85  Ark.,  293,  107  S.  W.,  1182....  609 

Mitchel  V.  Reynolds,  1  P.  Wms.,  181    (1711) 766 

Moffett  V.   City  of  Rochester,  178  U.   S.,  373,  44  L.  ed.,  1108, 

(reversing  91  Fed.  Rep.,  28),  82  Fed.  Rep.,  256 585,586 

Moister  v.  Moore,  96  U.  S.,  76,  24  L.  ed.,  826 319 

Montgomery  v.  City  Council,  99  Fed.,  825,  830 946 

Montgomery  v.  Kellogg,  43   Miss.,  486 958 

Moore   v.   Copp,   119   Cal.,  429,   51   Pac,   630 945,946 

Moore  v.   Missouri,  159   U.   S.,  673,  16   Sup.   Ct.,  179 307 

Moore  v.   Ry.    Co.,   173    Mass.,   335,   53   N.   E.,    816,    Thayer's 

Cases,    51 845 

Moore  v.  U.  S.,  160  U.  S.,  268,  269,  16  S.  Ct.,  294,  40  L.  ed.,  422..  683 

Morris  v.  Morton's  Ex'rs.   (Ky.  1892),  20  S.  W.,  287 627 

Morse  v.  Stearns,  131  Mass.,  389   (1881) 694,696 

Mosnat  v.  Snyder,  105  la.,  500,  75  N.  W.,  356 487 

Moss  V.  Decatur  etc.  Co.,  93  Ala.,  269 731 

Moulton  V.  Doran,  10  Minn.,  67  (49) 972 

Mount  Holly  v.  Andover,  11  Vt.,  226,  34  Am.  Dec,  685 319 

Mt,  Hope  Nurseries  v.  Jackson,  36  Okla.,  273,  128  Pac,  250 908 


XXXVlll  I  EXTRATERRITORIAL  CASES. 

Page. 

Mullen  V.  State,  45  Ala.,  43,  6   Am.   Rep.,  691 625 

Muller   V.    Kelly,    116    Fed.,   545 907 

Mummenhoff  v.  Randall,  19  Ind.  App.,  44,  49  N.  E.,  40 581 

Muiioz  V.  Collector  of  Customs,  20  Phil.,  494 707 

Murphy  Hardware  Co.  v.  Southern  Ry.  Co.,  150  N.  C,  703,  64 

S.    E.,   873 607 

Murray  v.  McCarty,  2  Munf.    (Va.),  394 708 

Murray  v.  State,  25  Fla.,  528,  6  So.  Rep.,  498 454 

Murrell  v.  State,  46  Ala.,  89,  7  Am.  Rep.,  592 678 

N. 

Nab  V.  Heald,  41  111.,  326 880 

Nash  V.  Towne,  5  Wall.,  689,  889,  18  L.  ed.,  527 955,  956 

National  Bank  v.  Matthews,  98  U.  S.,  621,  628,  25  L.  ed.,  188..  760 

National  Bank  v.  Millard,  10  Wall.  (U.  S.),  152,  19  L.  ed.,  897..  108 

National  Bank  v.  Whitney,  103  U.  S.,  99,  26  L.  ed.,  433 760 

Nat.  Enameling  etc.  Co.  v.  Haberman,  120  Fed.,  415 766,  767,  825 

Nat.  etc.  Ass'n.  v.  Sparks,  83   Fed.,  225 478 

Nave  V.  Wilson,  12  Ind.  App.,  38  N.  E.,  876 645 

Needham  v.  Bremmer,  Law  Rep.,  1  C.   P.,  583 935 

Nephi  Irrigation  Co.  v.  Jenkins,  8  U.,  369,  31  Pac,  986 928 

Newby  v.  Von  Oppen,  L.  R.,  7  Q.  B.,  293 639 

Newcomb  v.  Wood,  97  U.  S.,  581,  24  L.  ed.,  1085 928 

Newman's  Estate,  75  Cal.,  213,  7  Am.   St.   Rep.,  146 482 

Niboyet  v.  Niboyet,  4  P.  D.,  1,  12 482 

Nichols   V.   State,   8   Ohio   St.,   435 417 

Noel  V.  Drake,  28  Kan.,  265,  42  Am.  Rep.,  162 730 

Noerr  v.  Brewer,  1  MacArthur   (D.  C),  508 405 

Nolan  V.   New,   31    La.   Ann.,   552 526 

Noonan  v.  Bradley,  9  Wall.,  394,  19  L.  ed.,  757 111,302 

Nordenfelt  v.  Maxim  etc.  Co.  Ltd.,  1894,  A.  C.  535 767,  821 

Norrington  v.  Wright,  115  U.  S.,  188,  29  L.  ed.,  366 297,300 

337,  771,  981 

North  Neb.  etc.  Ass'n.  v.  Box,  57  Neb.,  302,  77  N.  W.,  770 94G 

North    Noonday    Milling    Co.    v.    Orient   Mining    Co.,    1    Fed., 

522,  527 702 

Northwestern  Mutl.  L.   Ins.   Co.  v.   Stevens,   71  Fed.,  258 651 

Noyes    v.    Marsh,    123    Mass.,    286 730 

Nueva  Anna,  The,  6  Wheat.  193,  5  L.  ed.,  239 260 

Nugent  v.  Smith,  1   C.  P.  D.,  428 606 

O. 

Oakdale  Mfg.  Co.  v.  Garst,  18  R.  I.,  484,  28  Atl.,  973,  23  L.  R. 

A.,  639,  49  Am.  St.  Rep.,  784 767 

Oakes  v.  Merrifield,  93  Me.,  297,  45  Atl.,  32 433 

Oates  V.  Jackson,  2  Strange,  1171 895 


REFERENCES.  XXXIX 

Page. 

Opinions,  Attorneys  General — 

VII,  495  176 

507  870,884 

518  30 

565  37 

722  57 

IX,  32  870 

359 708 

XI,  474 27 

XIV,  297,  298 709 

XXX,  271    403 

462    542 

Opinion,  Solicitor  State  Dept.,  March  2,  1917 „ 668 

Oreg-on    Steam   Nav.   Co.   v.  Winsor,   20   Wall.,   64,   22   L.   ed., 

315    ...- 766,  768,  827 

O'Reilly  v.  Davis,  136  App.  Div.,  386,  120  N.  Y.  Suppl.,  883..  592 

Oriental  Mut.  Ins.  Co.  v.  Wright,  1  Wall.,  456,  17  L.  ed.,  505....  302 

Orr   V.    Ward,    73    111.,    318 731 

Osborne  v.  Shilling,  74  Kan.,  675,  88  Pac,  258,  11  Ann.  Cas., 

319  760 

Outlaw  V.   Hurdle,  46   N.   C,   150 714 

Owens  V.  Davenport,  39  Mont.,  555,  104  Pac,  682,  28  L.  R.  A. 

(N.  S.),  996 645 

P. 

Panaud  v.  Jones,  1  Cal.,  488,  506 649 

Paradine  v.  Jane,  Aleyn,  26    (1647) 982 

Paragon  Oil  Co.  v.  Hall,  7  Ohio  C.  C,  240 766 

Parish  v.  Yazoo  etc.  R.  Co.,  103  Miss.,  288,  60  So.,  322 611 

Parker  v.  Ausland,  13  S.  D.,  169,  82  N.  W.,  402 861 

Parker  v.  State,  61  N.  J.  L.,  308,  39  Atl.  651   (affirmed  62  N. 

J.   L.,    801) 330 

Patton's  Appeal,  31  Pa.  St.,  465 913 

Peacock  v.  Cummings,  46  Pa.  St.,  434 731 

Pearce  v.  Pearce,  30  Mont.,  269,  76  Pac,  289 837 

People  v.  Ah  Ping,  27   Calif.,  489 962 

People  v.  Bliven,  112  N.  Y.,  82,  19  N.  E.,  639 415 

People  v.  Chapman,  62  Mich.,  280,  28  N.  W.,  896 963 

People   V.   Connelly,   38    Pac.    (Cal.),   42 685 

People  V.   Courtney,   94  N.  Y.,  490  902 

People   V.   Dyle,   21    N.   Y.,   578 902 

People  V.  Fine,  77  Cal.,  147,  19  Pac,  269  678 

People   V.    Hovey,    92    N.    Y.,    554 902 

People  V.  Hurst,  62  Mich.,  276,  28  N.  W.,  838,  Beale's   Crim. 

Cas.,    716 684 

People  V.  Jacobs,  29  Cal.,  579 624 

People  V.  Martinez,  13  Porto  Rico,  246 845 


Xl  I  EXTRATERRITORIAL  CASES. 

Page. 

People   V.   McGarry,    136   Mich.,   316 902 

People  V.  McMakin,  8   Cal.,  547 623 

People  V.  Miller,  169  N.  Y.,  339,  62  N.  E.,  418 127 

People  V.  Mitchell,  139  Iowa,  455,  116  N.   W.,  808 624 

People    V.    Nelson,    3    Lans.     (N.    Y),    394 665 

People  V.  N.  Y.  etc.  R.  Co.,  28  Hun.  (N.  Y.),  543,  9  Am.  &  Eng. 

R.   Cas.,   1 607 

People  V.  Ross,  66  Mich.,  94,  33  N.  W.,  30 916 

People  V.  Star  Co.,  135  App.  Div.,  517,  120  N.  Y.,  498 987 

People  V.  Sylva,  143  Cal.,  62,  76  Pac,  814 131 

People  V.  Wasservogel,  77  Cal.,  173 127 

People  V.  Webster,  28  Col.,  223,  64  Pac,  207 854 

Pepper  v.  Western   Union  Tel.  Co.,  87  Tenn.,   554,   US.  W., 

783  587,588 

Perkins  v.  Jones,  84  Va.,  358,  4  S.  E.,  833,  10  Am.  St.  Rep., 

863  894 

Perrin  v.  United  States,  232  U.  S.,  478,  58  L.,  ed.,  691 313 

Perry  v.   State,   3   Greene    (la.),   550   836 

Perry  v.  Wheeler,  12  Bush,  541 731 

Petrie  v.  Hannay,  3  T.  R.,  418  646 

Pettersen  v.  Winn,  5  Pet.   (U.  S.),  242 85 

Phalen    v.    Clark,    19   Conn.,    421,    50    Am.    Dec,    253 644 

Phoenix  Bank  v.   Risley,   11   U.   S.,  125,  28   L.  ed.,  374 108 

Phipps  V.  Pitcher,  6  Taunt.,  220 649 

Pickett  V.  Casualty  Co.,  60  S.  Car.,  477,  38  S.  E.,  160,  629 947 

Pierce  v.  R.  Co.,  173  U.  S.,  1,  43  L.  ed.,  591 976 

Ping-On,  The,  v.  Blethen,  11  Fed.,  607 179 

Pitcairn  v.  Pitcairn,  201  Pa.  St.,  368,  50  Atl.,  963 324 

Pitt  V.  Dacre,  1876,  3  Ch.  D.,  295 83 

Pittsburgh  etc.  R.  Co.,  v.  Hazen,  84  111.,  36,  25  Am.  Rep.,  422..  608 
Pittsburgh  etc.  R.  Co.  v.  Hollowell,  65  Ind.,  188,  32  Am.  Rep., 

63  608 

Planters'  Bank  v.  Union  Bank,  16  Wall.,  483,  21  L.  ed.,  473-.  646 

Playfor  v.  Telegraph  Co.,  Allen,  Tel.  Cases,  437 587 

Porter  v.  Collins,  90  Ala.,  510,  8  So.,  80 946 

Prame   v.    Ferrell,    166    Fed.,    702 825,829 

Prentiss  v.  Ledyard,  28  Wis.,  131 „ 731 

Price  V.  Green,  16  M.  &  W.,  346 827 

Pritchard  v.  Norton,  106  U.  S.,  124,  27  L.  ed.,  104 176 

Prize  Cases,  2  Black,  696,  17  L.  ed.,  459 260 

Pronovost  v.  United  States,  232,  U.  S.,  487,  58  L.  ed.,  696 313 

Pyle  V.  Pyle,  158  111.,  289,  41  N.  E.,  999 673 

Q. 

Queen  v.  Anderson,  L.  R.,  1  Crown  Cases  Reserved,  161 62,  63 

^v.  The  Inhabitants  of  Cluworth,  6  Mod.,  163,  1  Stalk,  359..  985 

V.  Railway  Co.,  3  Q.  B.,  267 985 


REFERENCES.  xli 

Page. 

V.  Saintiff,  6  Mod.,  255 985 

Quinby  v.  Duncan,  4  Harr.   (Del.),  383 381 

R. 

Ragland  v.  Green,  14  Sm.  &  Mar.  (Miss.),  194 913 

Randall  v.  Brigham,  7  Wall.   (U.  S.),  523,  19  L.  ed.,  285 835 

Randall  v.  Peerless  Motor  Car  Co.,  212  Mass.,  352,  99  N.  E., 

221  728 

Re  Dallas  Horse  Repository,  Hongkong  Supreme  Court,  October 

31,    1910 227 

Re  Gee  Hoh,  71  Fed.,  274 701 

Re    Lord    Southampton's   Estate,   Allen   v.    Lord    Southampton 

(1880),  16  Ch.  D.,  178,  50  L.  J.  Ch.,  218,  43  L.  T.,  687,  29  W. 

R.,  231 390 

Re  May,  1  N.  W.  (Mich.),  1021 192 

Redden  v.  Covington,  29  Ind.,  118 880 

Reeves  v.  State,  95  Ala.,  31,  41,  11  So.,  158 683 

Reg.  V.  County  of  Wilts,  1  Salk,  359 985 

Reg.  V.  Great  North  of  England  Ry.  Co.,  9  Q.  B.,  315,  2  Cox, 

C.  C,  70,  7  Eng.  Rul.  Cas.,  466 987 

Reg.  V.  Norman,  Carr.  &  Marsh,  501,  41  E.  C.  L.,  274,  14  Am. 

Crim.  Rep.,  326 684 

Reid  V.  Terwilliger,  116  N.  Y.,  530,  22  N.  E.,  1091 595 

Reilley  v.  U.  S.,  106  Fed.,  896 799 

Renshaw  v.  Gams,  7  Pa.  St.,  117 945 

Reuss  v.  Picksley,  L.  R.,  1  Exch.,  342,  35  L.  J.  Exch.,  218 242 

Rex  v.  City  of  Gloucester,  Dougherty's  Crown  Circ.  Ass.,  359....  985 

Rex  v.  Corporation,  Liverpool,  3  East,  86 985 

Rex  v.  Flintan,  1  B.  &  Ad.,  227 935 

Rex  V.  Inhabitants,  Great  Boughton,  5  Bur.,  2700 985 

Rex  V.  Mayor,  Stratford-on-Avon,  14  East,  348 985 

Rex  v.  Merely,  2  Burr.,  1040 880 

Reynolds  v.  U.  S.,  98  U.  S.,  145,  25  L.  ed.,  244 493 

Rhoades  v.  R.  Co.,  49  W.  Va.,  500,  39  S.  E.,  209 977 

Rhodes  Co.  v.  Frazier,  55  S.  W.  (Tex.),  192 968 

Rice  V.  Mfg.  Co.,  2  Cush.   (Mass.),  80 907 

Rich  v.  Rayle,  2  Humph  (Tenn.),  404 710 

Richards  &  Co.  Inc.  v.  Wreschner,  156  N.  Y.  Supp.,  1054 618 

Richardson  v.  Goddard,  23  How.,  28,  16  L.  ed.,  412 90 

Richardson  v.  M.  Samuel  &  Co.,  L.  R.,  1,  Q.  B.,  261 303 

Richter  v.  Jerome,  25  Fed.,  679 812 

Rigney  v.  Rigney,  127  N.  Y.,  408,  24  Am.  St.  Rep.,  462 482 

Riley  v.  State,  16  Conn.,  47 456 

Roa  v.  Collector  of  Customs,  23  Phil.,  315 707 

Robertson  v.  State,  109  Ind.,  79,  10  N.  E.,  582 640 

Rogers  v.  State,  117  Ala.,  192,  23  So.,  82 915 

Rookwood,  The,  10  L.  T.  R.,  314 303 


xlii  I  EXTRATERRITORIAL  CASES. 

Page. 

Ronan  v.  Ronan,  32  Misc.,  467,  66  N.  Y.  Supp.,  799 534 

Rooney  v.  U.  S.,  203  Fed.,  928 415 

Rose  V.  Mimely,  4  Cranch,  241,  2  L.  ed.,  241 260 

Roselle  v.  Beckemeir,  134  Mo.,  380,  35  S.  W.,  1132 645 

Ross  V.  Ross,  129  Mass.,  243,  37  Am.  Rep.,  321 442 

Roszel  V.  Roszel,  73  Mich.,  133,  40  N.  W.,  858,  16  Am.  State 

Rep.,  569 367 

Roth  V.  Roth,  104  111.,  35,  44  Am.  Rep.,  81 482 

Rousillon  V.  Rousillon,  L.  R.  14  Ch.  Div.,  351 767,  824 

Royal  Brewing  Co.  v.  Missouri  etc.  R.  Co.,  217  Fed.,  146 606 

Ruddell  V.  Landers,  25  Ark.,  238,  94  Am.  Dec,  719 428 

Runyan  v.  Costar's  Lessee,  14  Pet.,  122,  10  L.  ed.,  382 760 

Russell  V.  Clark,  7  Cranch   (U.  S.),  69,  3  L.  ed.,  271 266 

Russell  V.  Kelly,  44  Cal.,  641 486 

Russell  V.  Place,  94  U.  S.,  606,  24  L.  ed.,  214 278 

Russell  &  Co.  V.  Stevenson,  34  Wash.,  166,  75  Pac,  627 946 

S. 

St.  Clair  v.  U.  S.,  154  U.  S.,  152,  38  L.  ed.,  936 397,  792 

St.  Louis  etc.  R.  Co.  v.  Keefe,  113  Ark.,  215,  168  S.  W.,  131 609 

St.  Louis  etc.  R.  Co.  v.  Leder  Bros.,  87  Ark.,  298,  112  S.  W., 

744 611 

Samuels  v.  Oliver,  130  111.,  73,  229  N.  E.,  499 645 

Sandage  v.  Manufacturing  Co.,  142  Ind.,  148,  41  N.  E.,  380.-  956 

Sands  v.  Hickey,  135  Ala.,  322,  33  So.,  827 913 

Saxonia  etc.  Co.  v.  Cook,  7  Colo.,  569,  4  Pac,  1111 976 

Scheming  v.  Scheffling,  44  N.  J.  Eq.,  438,  15  Atl.,  577 496 

Schmidt  v.  North  Yakima,  12  Wash.,  121,  40  Pac,  790 747 

Schroeder  v.  Trading  Co.,  95  Fed.  296 977 

Schumacher  v.  Brewing  Co.,  78  Minn.,  50,  80  N.  W.,  838 346 

Schuylkill  County  v.  Copley,  67  Pa.  St.,  386,  5  Am.  Rep.,  441..  908,  909 

Scott  V.  Ford,  52  Or.,  288,  97  Pacific,  99 _ 710 

Scott  V.  United  States,  12  Wall.,  443,  20  L.  ed.,  438 584 

Sears  v.  Dillingham,  12  Mass.,  358 649 

Second   United   Presbyterian   Church  v.   First   United   Presby- 
terian Church,  71  Neb.,  563,  99  N.  W.,  252 697 

Selden  v.  Myers,  20  How.  (U.  S.)  506,  15  L.  ed.,  976 909 

Sergeson  v.   Sealey,  2  Atk.,  412 673 

Seringapatam,  The,  3  W.  Rob.,  38 21 

Seward  v.  Garlin,  33  Vt.,  583 902 

Shackleford  v.  State  (Tex.  Cr.  App.),  538,  53  S.  W.,  884 675 

Shanks  v.  Dupont,  3  Pet.  (U.  S.),  242,  7  L.  ed.,  666 706 

Sharp  V.  Taylor,  2  Phillips   (22  Eng.  Ch.),  801 644,645 

Sharpe's  Estate,  15  W.  N.  C,  419 888 

Sharon  v.  Hill,  24  Fed.,  731 126 

Sharon  v.  Sharon,  67  Cal.,  193 369 


REFERENCES.  xliii 

Page. 

Shaw  V.  Quincy  Mining  Company,  145  U.  S.,  444,  36  L.  ed.,  768  638 

Shelton  v.  Ellis,  70  Ga.,  297 „ 582 

Shepherd  v.  Gambill,  96  S.  W.    (Ky.),  1104  977 

Sherwood  v.  Alvis,  83  Ala.,  115,  3  So.,  307,  3  Am.   St.   Rep., 

695  760 

Shingleur  v.  Western  Union  Tel.  Co.,  72  Miss.,  1030,  18   So., 

425  588 

Shoemaker  v.  Brown,  10  Kan.,  383 880 

Shoptaugh  V.   St.  Louis  etc.   R.   Co.   147   Mo.  Appl.  8,  126   S. 

W.,  752 611 

Simpson  v.  Bloss,  7  Taunt.,  246,  2  Eng.  Com.  L.,  346 644 

Singer  v.  Grand  Rapids  Match  Co.,  117  Ga.,  86,  43  S.  E.,  755 588 

Slattery  v.  Slattery,  139  la.,  419,  116  N.  W.,  608 837 

Slaughter  v.  Gerson,  13  Wall.,  379,  20  L.  ed.,  627 946 

Small  V.  Swan,  1  Me.,  133 880 

Smith  V.  Coney,  6  Ves.,  42 696 

Smith  V.  Coon,  89  Neb.,  776,  132  N.  W.,  555 „...  593 

Smith  V.  Mackin,  4  Lans.,  41 585 

Smith  V.   Rowe,  4  Cal.,  6 „ 928 

Smith  V.  Sheerley,  12  Wall.  (U.  S.),  358,  361,  20  L.  ed.,  430 759 

Smith  V.  Smith,  45  Ala.,  264 534 

Smith  V.  Smith,  134  N.  Y.,  62,  31  N.  E.,  258 908 

Smith  V.  State,  1  Yerg.   (Tenn.),  228 852 

Smith  V.  Thesmann,  20  Okla.,  133,  93  Pac,  977 959 

Smith  V.  U.  S.,  157  Fed.,  721 801 

Snedekers  v.  Allen,  2  N.  J.  L.,  32,  41 649 

Sneed  v.  People,  38  Mich.,  348 832 

Snell  V.  Insurance  Co.,  98  U.  S.  85,  25  L.  ed.,  52 585 

Solenberger  v.  Stickler's  Adm'r.,  110  Va.,  273,  65  S.  E.,  566....  946 

Sorenson  v.  Keyser,  52  Fed.,  163  303 

Southern    Express   Co.   v.   State,    1    Ga.   App.,    700,   58    S.    E., 

67  984,  986,  987 

Southwell  V.  Bowditch,  1  C.  P.  D.,  374,  45  L.  J.  Rep.,  630....  438,  439 
Spark,  The,  v.  Lee  Choi  Chum,  1  Sawy   (U.  S.),  713,  22  Fed. 

Cas.  No.  13206 179,377,720,879 

Spies  V.  Rosenstock,  87  Md.,  14,  39  Atl.,  268 429,  433 

Sprague  v.  Warren,  26  Neb.,  326,  41  N.  W.,  1113,  3  L.  R.  A.,  679..  117 

Spreckels  v.  Ward,  12  Phil.,  418,  7  Off.  Gaz.,  146 701 

Spring  V.  Dahlman,  34  Neb.,  692,  52  N.  W.  Rep.,  567 456 

Spurgeon  v.  McElwain,  6  Ohio,  442,  27  Am.  Dec,  266 429 

Stacy  V.  Ross,  27  Tex.,  3,  84  Am.  Dec,  604 908,  909 

Stallman  v.  Kimberly,  121  N.  Y.,  393,  24  N.  E.,  939  991 

Standard  Oil  Co.  v.  U.  S.,  221  U.  S.,  1,  55  L.  ed.,  619 277 

Standard  Oil  Co.  v.  Van  Etten,  107  U.  S.,  325,  27  L.  ed.,  319..  946 

State  V.  Abram,  4  Ala.,  272 880 

State  V.  Atchison,  71  Tenn.,  729 987 


Xliv  I  EXTRATERRITORIAL  CASES. 

Page. 

State  V.  Barry,  45  Mont.,  598,  124  Pac,  775 623 

State  V.  Bertheol,  6  Blackford  (Ind.),  674,  39  Am.  Dec,  442....  330 

State  V.  Bezou,  48  La.  Ann.,  1369,  20  So.,  892 832 

State  V.  Brooks,  92  Mo.,  542,  5  S.  W.,  257 _ 678 

State  V.  Burchinal,  4  Harr.  (Del.),  572 328 

State  V.  Butler,  21  S.  C,  353 684 

State  V.  Cherry,  33  N.  C,  475 624 

State  V.  Church,  63  N.  C,  15 623 

State  V.  Comr's.,  54  Md.,  426 673 

State  V.  Doud,  7  Conn.,  384 413 

State  V.  Ellis,  26  N.  J.  L.,  219 542,  543 

State  V.   Epperson,  27   Mo.,   255 623 

State  V.  Farr,  33  la.,  553 - 962 

State  V.  Feuerhaken,  96  Iowa,  299,  65  N.  W.,  299 863 

State  V.   Glenn,  14  S.  C,   118 '. 880 

State  V.  Great  Works  Co.,  20  Me.,  41 986 

State  V.  Herrin^on,  21  Ark.,   195 916 

State  V.  Herron,  12  Mont.,  230,  33  Am.  St.  Rep.,  576 624 

State  V.  Jackson,  32  S.  C,  27,  10  S.  E.,  769 623 

State  V.  Lewis,  51   Or.,  467,  94  Pac,  831 794 

State  V.  Lyon,  45  N.  J.  L.,  272 684 

State  V.  McAllister,  24   Me.,   139   902 

State  V.  McFadden,  42  Wash.,  1,  84  Pac,  401 623 

State  V.  McGrath,  92  Mo.,  355,  5  S.  W.,  29 665 

State  V.   Mclntyre,   53   Me.,   214..... 928 

State  V.  Morris  &  Essex  Ry.,  23  N.  J.  Law,  360 987 

State  V.  Nappers,  6  Nev.,  113 624 

State  V.  Ohio  &  Miss.  R.  Co.,  23  Ind.,  363 986 

State  V.  Orwig,  25  la.,  280 928 

State  V.  Passaic  Co.,  Agr.  Soc,  54  N.  J.  L.,  260,  23  Atl.,  680....  987 

State  V.  Pierce,  65  Iowa,  85  21  N.  W.,  195 329 

State  V.  Plym,  43   Minn.,  385,   Thayer's  Cas.,  60,  45  N.  W., 

848    - 651,653 

State  V.  Poe,  123  la.,  118,  98  N.  W.,  587,  101  Am.  St.  Rep., 

307  - ^ 678 

State  V.  Portland,  74  Me.  268,  43   Am.  Rep.,   586 986 

State  V.  Putnam,  53  Or.  266,  100  Pac,  2 487 

State  V.  R.  Co.,  23  N.  J.  L.,  364,  365 „...  985 

State  V.  Rawles,  65  N.  C,  334 623 

State   V.   Roe,   12   Vt.,   93 „ 636 

State  V.   Salge,  1   Nev.  455 381 

State  V.  Smith,  67  Me.,  328 636 

State  V.   Stevens,  67  la.,  557,  25  N.  W.,  777 678 

State  V.  Sullivan,  43  S.  C,  205,  21   S.  E.,  4 623 

State  V.  Tally,  102  Ala.,  25,  15  So.,  722 963 

State    V.    Ward,    61    Vt.,    153 902 


REFERENCES.  xlv 

Page. 

State  V.  Webb,  25  Iowa,  235 329 

State  V.  Wilson,  121  N.  C,  650,  28  S.  E.  Rep.,  417 307 

State  V.  Wise,  32  Or.,  280,  50  Pac,  800 306 

State  ex  rel.  v.  Bearing,  180  Mo.,  53,  79  S.  W.,  454 876 

State  ex  rel.  Renick  v.  St.  Louis  Co.  Ct.,  38  Mo.,  402 880,  882 

Stave  V.  Anderson,  29  La.  Ann.,  774 832 

Steehler  v.  Steehler,  No.  461   (U.  S.  Ct.  for  China) 692 

Stephens  v.  Howe,  34  N.  Y.   Super.  Ct.,  133 779 

Sterritt  v.  Robinson,  17  la.,  61 880,  881 

Stewart  v.  R.  Co.,  141  Ind.,  55,  40  N.  E.,  6 907 

Stitt  V.  Huidekopers,  17  Wall.  385,  21  L.  ed.,  644 267 

Stokes  V.  U.  S.,  157  U.  S.,  187,  39  L.  ed.,  667 348 

Stone  V.  Cooper,  2  Den.   (N.  Y.),  299 364 

Strader  v.  Graham,  10  How.   (U.  S.),  82,  13  L.  ed.,  337 483 

Strasburger  v.  Dodge,  12  App.  Cas.   (D.  C),  48 950 

Stratton  v.  McKinnie  (Tenn.  Ch.),  62  S.  W.,  636,  638 895,896 

Strong  V.  Gutierrez,  213  U.  S.,  419,  53  L.  ed.,  853 861 

Sturges  V.  Crowninshield,  4  Wheat.  (U.  S.),  122,  4  L.  ed.,  529....  898 

Sullivan  v.  Thompson,  99  Mass.  259 91 

Supreme   Assembly  v.   McDonald,   59   N.   J.   L.,   248,   35   Atl., 

1061  700 

Supreme  Lodge  v.  Fletcher,  78  Miss.,  377,  29  So.,  523 673 

Sutton   V.    Com.,   85    Va.,    128 902 

Succession  of  Bradford,  124  La.,  44,  49   So.,  972 697 

Succession  of  Ehrenberg,  21  La.  Ann.,  280,  99  Am.  Dec,  729....  715 

Succession  of  Justus,  48  La.  Ann.,  1096,  20  So.,  680 700 

Swift  &  Co.  V.  Short,  92  Fed.,  567,  570 795 

Swigert  v.  Tilden,  121  Iowa,  650,  97  N.  W.,  82,  63  L.  R.  A., 

608  766 

Sy  Joe   Lieng  v.   Sy   Quia,   16   Philippine,    137 795,902 

Sykes  v.  Beadon,   11   Ch.   Div.,   170,  48  L.  M.  J.   Ch.  522,  40 

L.   T.   Rep.    (N.    S.),   243,   27  Wkly.    Rep.,   684 646 

Sykes  v.  Life  Ins.  Co.,  148  N.  C,  13,  61  S.  E.,  610 945 

Sylvis  V.  Sylvis,  11  Colo.,  319,  17  Pac,  912 837 

T. 

Tallis  V.  Tallis,  E.  &  B.,  391,  22  L.  J.,  185 766 

Tate  V.  Tate,  11  Humph.,   (Tenn.)   464 843 

Tatum  V.  Kelly,  25  Ark.,  209,  94  Am.  Dec,  717 428 

Taylor  v.  Pope,  5  Coldw.,   (Tenn.),  413 880 

Taylor  v.  Tolen,  38  N.  J.  Eq.,  91 697 

Taylor  v.  U.  S.,  89  Fed.,  954 794,801 

Taylor  v.  White,  160  N.  C,  38,  75  S.  E.,  941 325 

Taza3nmon  v.   Twombley,  5   Sawy    (U.   S.),  79,  23  Fed.   Cas., 
No.  13810  179,  720 


Xlvi  I  EXTRATERRITORIAL  CASES. 

Page. 

Telegram  Newspaper  Co.  v.  Com.,   172  Mass.  293,  52  N.  E., 

445,  44  L.  R.  A.,  159,  70  Am.  St.  Rep.,  280 987 

Tenant  v.  Elliot,  1  Bos.  &  Pul.,  3 642 

Terre  Haute  Brewing  Co.  v.  Hartman,  19  Ind.  App.,  596,  49 

N.    E.,    864    433 

Texas  etc.  R.  Co.  v.  Reis,  183  U.  S.,  621,  46  L.  ed.,  358 303 

Thayer  v.  City  of  Boston,  15  Gray  (Mass.),  347 694,696 

Thacker  v.  Hardy,  42  Q.  B.  D.,  685 115, 116 

Thrasher's  Case,  Moore,  International  Law  Digest,  III,  818 95 

Thomas  Fletcher,  The,  24  Fed.,  481 473,  475 

Thomas  v.  Stevens,  4  Johns.  Ch.  (N.  Y.),  607 695 

Thorndike  v.  City  of  Boston,  1  Mete.  (Mass.),  242 141 

Thornton  v.  Kempster,  5  Taunt.,  786 242 

Thorp  V.  State,  59  Tex.  Cr.,  App.  517,  129  S.  W.,  607,  29  L.  R.  A. 

(N.   S.) ,   421 678 

Timon  v.  State,  34  Tex.  Cr.  App.,  363,  30  S.  W.,  808 916 

Tisdale  v.  Conn.  Mut.  Ins.  Co.,  26  la.,  170,  96  Am.  Dec,  136....  651,  652 
Tode  V.  Gross,  127  N.  Y.,  480,  28  N.  E.,  469,  13  L.  R.  A.,  652, 

24   Am.    St.   Rep.,   475   767 

Toledo  etc.  R.  Co.  v.  Wren,  78  Ohio  St.,  137,  84  N.  E.,  785....  606,  611 

Tolen  V.  Tolen,  2   Blackf.    (Ind.),  407,  21   Am.   Dec,   742 483 

Toll  V.  State,  40  Fla.,  169,  23  So.,  942 210 

Trenton  Potteries  Co.  v.  Oliphant,  58  N.  J.  Eq.,  507,  43  Atl., 

723,  46  L.  R.  A.,  255.  78  Am.  St.  Rep.,  612 766 

Tritt  V.  Bize,  51  Ga.,  494 880 

Trigg  V.  Read,  5  Humph.   (Tenn.),  529,  42  Am.  Dec,  447 944 

Tsoi  Yii  V.   U.   S.,   129  Fed.,   585 721 

Trustees  v.  Peaslee,  15  N.  H.,  317 697 

Turpin  v.  Gresham,  106  Iowa,  187,  76  N.  W.,  680 945 

Tyson  v.  Passmore,  2  Pa.  St.,  122 945 

U. 

Underwood  v.  Barker,   1   Ch.   Div.    (1898-9),  300 766 

Union   Central   Ins.    Co.   v.    Hollowell,    14   Ind.   App.,    611,    43 

N.    E.,    277    673 

Union  Lumber  Co.  v.  Schouten  Co.,  25  Cal.  App.  80,  142  Pac, 

910  946 

United  Surety  Co.  v.  American  Fruit  Product  Co.,  238  U.  S., 

140,  59  L.  ed.,  1238,  35  Sup.  Ct.,  828 660 

Upton  V.  Tribilcock,  91   U.  S.,  45,  23  L.  ed.,  303 907 

U.  S.  V.  Ablaza,  1  Phil.,  740,  1  Off.  Gaz.,  143,  412 517 

U.  S.  V.  Addyston  Pipe  &  Steel  Co.,  85  Fed.,  271 766 

U.  S.  V.  Adolfo,  12   Phil.,  299,  7  Off.   Gaz.,  41 701 

U.  S.  V.  Allred,  155  U.  S.,  591,  39  L.  ed.,  273 928,  931 

U.  S.  V.  American  Tobacco  Co.,  221  U.  S.,  106,  55  L.  ed.,  663.-  277 


REFERENCES.  xlvii 

Page. 

U.  S.  V.  Averill,  130  U.  S.,  335,  32  L.  ed.,  977 892 

U.  S.  V.   Bede,  24  Fed.   Cases,   1063 329 

U.  S.  V.  Benner,  5  Cranch   (C.  C),  347,  24  Fed.  Cases,  1089..      329 

U.  S.  V.  Bowen,  100  U.  S.,  508,  25  L.  ed.,  631 404 

U.  S.  V.  Cassidy,  67  Fed.,  698 794,  901 

U.  S.  V.  Cole,  5  McLean,  513,  25  Fed.  Cas.,  494 903 

U.  S.  V.  Columbus,  5  Cranch   (C.  C),  304,  25  Fed.  Cases,  589..       330 

U.   S.  V.  Conner,  1  Cranch    (U.   S.   C.  C),  102 210 

U.  S.  V.  Dick,  30  Phil.,  80,  13  Off.  Gaz.,  778 493 

U.  S.  V.  Doo-noch-keen,  2  Alaska,  624 405 

U.  S.  V.  Elder,  4  Cranch   (C.  C),  507,  25  Fed.  Cases,  996 329 

U.  S.  V.  Freight  Assn.,  166  U.  S.,  290,  41  L.  ed.,  1001 277 

U.-  S.  V.  Gee  Lee,  50  Fed.,  271 721 

U.  S.  V.  Gillies,  Pet.   (C.  C),  159,  3  Wheeler  Crim.  Cas.,  308, 

25    Fed.    Cas.,    1321 708 

U.   S.  V.   Grafton,  6   Phil.,   55 517 

U.  S.  V.  Green,  115  Fed.,  343 903 

U.   S.   V.   Harper,  33   Fed.,   471,   474 180,683 

U.  S.  V.  Haskins,  3  Sawy,  262,  26  Fed.  Cas.,  213 402,  404 

405,  406,  721 

U.  S.  V.  Holmes,  5  Wheat.,  412,  5  L.  ed.,  122 61 

U.  S.  V.  Howell,  56  Fed.,  21 799 

U.  S.  V.  Irwin,  26  Fed.  Cas.,  546 303 

U.  S.  V.  Johnson,  26  Fed.,  682 962,  963 

U.  S.  V.  Johnson,  228  Fed.,  253 963 

U.  S.  V.  Kosel,  24  Philippine,  594 902 

U.  S.  V.  Larviere,  93  U.  S.,  188,  23  L.  ed.,  846 313 

U.  S.  V.  Louisiana,  123  U.  S.,  32,  31  L.  ed.,  69 880 

U.  S.  V.  Malabanan,  9  Phil.,  262 916 

U.  S.  V.  Maxwell  Land  Grant  Co.   121  U.  S.,  325,  30  L.  ed.,^ 

949,    7    Sup.    Ct.,    1015 909 

U.  S.  V.  McAndrews  &  Forbes  Co.,  149  Fed.,  823 987 

U.  S.  V.  McCrory,  175  Fed.,  802 348 

U.  S.  V.  Molo,  5  Phil.,  414,  4  Off.  Gaz.,  57 412,  517 

U.   S.  V.   Morrison,  4   Pet.,   124,   7   L.   ed.,   804 472 

U.   S.   V.   Navarro,  3   Phil.,   143 902 

U.  S.  V.  New  York  Herald  Co.,  159  Fed.,  296 987,  989 

U.   S.   V.   Newth,    149   Fed.,   302 405,407 

U.  S.  V.  Ocampo,  18  Phil.,  54   (affirmed,  234  U.  S.,  91,  58  L. 

ed.,    1231)    487, 494 

U.  S.  V.  Ortiz,  8  Phil.,  753 494 

U.  S.  V.  Palmer,  3  Wheat.,  610,  4  L.  ed.,  471 260 

U.  S.  V.  Prautch,  10  Phil.,  562 494 

U.  S.  V.  Pridgeon,  153  U.  S.,  48,  38  L.  ed.,  631 126 

U.  S.  V.  Reyes,  3  Phil.,  3 783,784 

14008  O.  W. iv 


Xlviii  I  EXTRATERRITORIAL  CASES. 

Patre. 

U.  S.  V.  Rindskopf,  6  Biss.,  259,  27  Fed.  Cas.,  813 800 

U.  S.  V.  Schindler,  10  Fed.,  547,  550 902 

U.  S.  V.  Scott,  139  Fed.,  697 801 

U.  S.  V.  Simbahan,  19  Phil.,  123 793,  854 

U.  S.  V.  Stamatapoulos,  164  Fed.,  524 903 

U.   S.  V.  Talbanos,  6   Phil.,  541,  4  Off.   Gaz.,  696 517 

U.  S.  V.  Tilden,  10  Ben.  (U.  S.  D.  C),  547,  28  Fed.  Cas.,  171...  814 

U.   S.  V.  Williams,  2  Fed.,  64 130 

U.  S.  V.  Wilson,  4  Phil.,  317,  323 359 

U.  S.  V.  Wong  Kim  Ark,  169  U.  S.,  649,  42  L.  ed.,  890 702 

U.  S.  V.  Wright,  Fed.  Cas.  No.  16774 126 

U.  S.  V.  Wright,  16  Fed.,  112 963 

U.  S.  V.  Wright,  229  U.  S.,  226,  237,  57  L.  ed.,  1160 313 

U.  S.  L.  Ins.  Co.  V.  Vocke   (Kielgast),  129  111.,  557,  22  N.  E., 

467,  6  L.  R.  A.,  65 673 

V. 

Vanderhoof  v.  Shell,  42  Or.,  578,  72  Pac,  126 921 

Van  Nostrand  v.  Board,  59  N.  J.  Eq-.,  19,  44  Atl.,  472 697 

Verdin   v.   Robertson,   10   Ct.   Sess.   Cas.    (3rd   Ser.),   35 587 

Vickers  v.   R.  Co.,   71   Fed.,   139 907 

Village  Belle,  The,  30  L.  T.,  232 303 

Vroman  v.  Dewey,  22  Wis.,  323 528 

W. 

Wadsworth  v.  Adams,  138  U.  S.  388,  34  L.  ed.,  984 233 

Wadsworth   v.   Wadsworth,   81    Cal.,    182 ;. 369 

Waeber  v.  Talbot,  167  N.  Y.,  48,  60  N.  E.,  288 921 

Waite  V.  Coaracy,  45  Minn.,  159,  47  N.  W.,  537 651 

Wales   V.    Harper    (Manitoba),    17    West.    L.    R 559 

Walker  v.  Fraser,  9  Scotch  Sess.  Cas.   (3rd  ser.),  1091,  1092 498 

Walther  v.  Ins.  Co.,  65  Cal.,  417,  4  Pac,  413 673 

Ward    V,    Putnam,    119    Ky.,    889,    85    S.    W.,    179,    7    Ky.    L. 

Rep.,    367 648 

Ware  v.  Allen,  128  U.  S.,  590,  32  L.  ed.,  563 1008 

Ware  v.  Wanless,  2  Wyoming,  144 85 

Wasey  v.  Ins.  Co.,  126  Mich.,  119,  85  N.  W.,  459 673 

Washington  etc.  R.  Co.  v.  Downey,  236  U.  S.,  190,  59  L.  ed., 

533,  35  Sup.  Ct.,  406 660 

Watts  V.  Public  Administrator,  4  Wend.,  168 648 

Waugh  V.  Beck,  114  Pa.  St.,  42,  6  Atl.,  923 117 

Weaver  v.  Commonwealth,  29  Pa.   St.,  445 413 

Webb  V.  Baltimore,  77  Md.,  92 242 

Weber  v.  Weber,  153  Wis.,  132,  140  N.  W.,  1052,  45  L.  R.  A. 

(N.  S.) ,  875 534 

Webster  v.  Cecil,  30  Beavan,  62 580 


REFERENCES.  xlix 

Page. 

Webster  v.  Lowe,  107  Ky.,  293,  53  S.  W.,  1030 715 

Weed  V.  Panama  R.  Co.,  17  N.  Y.,  362,  72  Am.  Dec,  474 607 

Weintz  v.  Hafner,   78   111.,   27 887 

West  V.  Camden,  135  U.  S.,  507,  34  L.  ed.,  254,  10  Sup.  Ct,  383  730 

Western  Mfg.  Co.  v.  Cotton,  126  Ky.,  749,  10  S.  W.,  758 908 

Western  Union  Telegraph  Co.  v.  Shotter,  71  Ga.,  760 588 

Wheaton  v.  Fellows,  23  Wend.  (N.  Y.),  375 474,475 

Wheeler  v.  Billings,  38  N.  Y.,  263 955 

White  V.    Converse,   20   Wend.    (N.   Y.),   266 474 

White  V.  Nicholls,  3  How   (U.  S.),  266,  11  L.  ed.,  591 486 

White  V.  White,  75  la.,  218,  39  N.  W.,  277 837 

Whittaker   v.   Howe,   3   Beav.,   383 766 

Wlghtman  v.  Wightman,  4  Johns.  Ch.   (N.  Y.),  343 322,534 

Wihen  v.   Law,   3    Starkie,   63 700 

Wilbur  V.  Stoepel,  82   Mich.,  344,  46  N.  W.,  724 730 

Wilcox  V.  State,  94  Tenn.,  106,  28  S.  W.,  312 417 

Wilcox  V.  Tel.  Co.,  176  N.  Y.,  115,  68  N.  E.,  153 907 

Wilder  v.   U.   S.,  5   Court  of  Claims,   462 731 

Wiley  V.  Baumgardner,  97  Ind.,  66 829 

Wilkerson  v.  Farnham,  82  Mo.,  679 955 

Wilkinson  v.  Heavenrich,  58  Mich.,  574,  26  N.  W.,  139 242 

Williams'  Case,  Wharton's  State  Trials,  652,  Scott's  Cases  on 

International  Law,  372 706 

Williams  v.  Armour  Car  Lines,  7  Pen.  (Del.),  275,  79  Atl.,  919....  611 

Williams  v.  Benson,  87   Kan.,  421,  124  Pac,  531 593 

Williams    v.    Chicago    Coal    Co.,    60    111.,    149 805 

Williams  v.   Purdy,   6   Paige  Ch.    (N.   Y.),   166 596 

Williams  v.  Sorrell,  4  Ves.  389 390 

Williams  v.   State,  22  Tex.,  App.,  497,  4  S.  W.,  64 678 

Williams  v.   State,  43   Tex.,  182,   23  Am.  Rep.,  590 678 

Williams  v.  Wells,  1  Hayw.  &  H.    (D.  C),  116,  29  Fed.  Cas., 

1417   649 

Williams  v.  Williams,  16  Lea  (Tenn.),  164,  172 895 

Williamson  v.  U.  S.,  207  U.  S.,  425,  52  L.  ed.,  278 903 

Willard  V.  Willard,  6  Baxt.  (Tenn.),  397,  32  Am.  Rep.,  529 325 

Wills  V.   Ross,   77   Ind.,   1 959 

Wimer   v.    Allbaugh,    78   la.,   79,   42   N.   W.   587,    16   Am.    St. 

Rep.,    422 595 

Winship  v.  Portland  etc.  Ass'n.,  78  Me.,  571,  7  Atl.,  706 968 

Withers  v.  Edmonds,  26  Tex.  Civ.  App.,  189,  62  S.  W.,  795....  730 

Woodburg  v.   McClurg,  98   Miss.,  831,  29   S.  W.,   514 665 

Woodle  V.  Whitney,  23  Wis.,  55,  99  Am.  Dec,  102 956 

Woodruff  V.   Wentworth,   133   Mass.,   309 730 

Woods   V.   Thornburn,   103   L.   T.   J.,   421 828 

Woodson  V.  Hopkins,  85  Miss.,  171,  70  L.  R.  A.,  645 646 

Woodward's  Appeal,  81  Conn.,  152,  70  Atl.,  453 756 


1  I  EXTRATERRITORIAL  CASES. 

Pasre. 

Worcester  v.  Ocampo,  22  Phil.,  86 486 

Wright  V.  Cudahy,  168  111.,  86,  48  N.  E.  Rep.,  39 434 

Wunsch  V.   Boldt,   15   S.   W.    (Tex.),   193 921 

Wushishan    Case,   North    China   Herald,   XXIII,   90 80 

Y. 

Young  V.  Cook,  144  Mass.,  39,  10  N.  E.,  719 814 

z. 

Zachary  v.    Chambers,   1   Or.,   321 596 

Zych  V.  American  Car  etc.  Co.,  127  Fed.,  723 811 

II.   CONSTITUTION    (FEDERAL). 

Article  I,  section  1 656 

Article  I,  section  8  175 

Article  I,   section   4  -      898 

Article  IV,  section   1 473 

Article   VI 174,659 

Amendment  IV 359 

Amendment  XIV,  section  1 701.  710 

III.   LEGISLATION,  ETC. 

1.  Acts  of  Congress. 

1789,  September  24,  1  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  20, 

p.  73,  sec.  30 810,  813 

1790,  April  30,  1  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  9,  p.  114....       401 
1790,  July  16,  1  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  28,  sec.  1, 

p.  130 320,  658 

1792,  April  14,  1  U.  S.  Stats,  at  Large,  Ch.  24,  sec.  2,  p.  255 870 

1800,  April  4,  2  U.  S.  Stats,  at  Large,  Ch.  19,  p.  19 898 

1801,  February  27,  2  U.  S.  Stats,  at  Large,  p.  103,  6th  Cong., 
Sess.  II,  Ch.  15 320,658 

1802,  May  3,  2  U.  S.  Stats,  at  Large,  p.  197,  7th  Congress,  Ch. 

53,  sec.  7 312 

p.  255,  8th  Congress,  Ch.  14,  sec.  3 312 

1803,  December  19,  2  U.   S.   Stats,  at  Large,  Ch.  6,  p.  248....       898 

1804,  March  26,  2  U.  S.  Stats,  at  Large,  Ch.  38,  sec.  7,  p.  285....       658 

1825,  March  3,  4  U.  S.  Stats,  at  Large,  Ch.  65,  sec.  3,  p.  115 658 

1834,  June  30,  4  U.  S.  Stats,  at  Large,  p.  732,  23d  Cong.,  Sess. 

I,  Ch.  161,  sec.  20 313 

1836,  July  1,  5  U.  S.  Stats,  at  Large,  61,  Ch.  231,  sec.  1 759 

1841,  August  19,  1841,  5  U.  S.  Stats,  at  Large,  Ch.  9,  p.  440 898 

1843,  March  3,  5  U.  S.  Stats,  at  Large,  Ch.  82,  p.  614 899 

1848,  August  11,  9  U.  S.  Stats,  at  Large,  p.  276,  c.  150 470 

Section    1 „ 10 

Section    2 10,  397,  399 


REFERENCES.  11 

1848 — Continued.  Page. 

Section    3 10, 107,  319,  870 

Section    4 7, 11, 159,  310,  319,  400,  659,  897,  929 

Section    5 8, 10, 11 

Section    6 9 

Sections   7-9 872 

Section    11 9 

Section    13 10,  871,  927 

Section    22 35,36 

1853,  February  26,  Sess.  II,  10  U.  S.  Stats,  at  Large,  Ch.  80, 
p.    161 892 

1860,  June  22,  12  U.  S.  Stats,  at  Large,  p.  72,  36th  Cong.,  Sess. 

I,  Ch.  179 292 

Section    2 29,  36,  397 

Section    3 106,  442,  482,  870 

Section    4 310,  319,  321,  369,,  371,  400,  443,  659,  755,  897,  929 

Section    21 36 

Section    27 873 

Section    30 874 

Section    31 320 

1861,  August  5,  12  U.  S.  Stats,  at  Large,  p.  291,  37th  Congress, 

1st  Sess.,  Ch.  44 312 

1862,  July  14,  12  U.  S.  Stats,  at  Large,  Ch.  164,  p.  565,  sec.  4..       314 

1864,  March  15,  13  U.  S.  Stats,  at  Large,  29,  Ch.  33 313 

1865,  March  3,  13  U.  S.   Stats,  at  Large,  p.  571,  38th  Cong., 
Sess.  II 320 

1866,  April  5,  14  U.  S.  Stats,  at  Large,  Ch.  24,  sec.  2,  p.  13 661 

1866,  July  23,  14  U.  S.  Stats,  at  Large,  p.  213,  39th  Congress, 

1st  Sess.,  Ch.  215,  sec.  3 312 

1866,  July  28,  14  U.  S.  Stats   at  Large,  322,  Ch.  296,  sec.  11 37 

1867,  March  2,  14  U.  S.  Stats,  at  Large,  Ch.  176,  p.  517 899 

1868,  July  27,  15  U.  S.  Stats,  at  Large,  223,  Ch.  249,  sec.  1....  706,  713 

1870,  July  1,  16  U.  S.  Stats,  at  Large,  183,  c.  194 179,  471 

1870,  December  13,  Sess.  Ill,  Ch.  I,  16  U.  S.  Stats,  at  Large, 

395  883 

1872,  June  7,  17  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  322,  sees. 

46,  50 718 

1872,  June  7,  17  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  322,  sec.  58..  320 

1873,  March  3,  17  U.  S.  Stats,  at  Large,  p.  570,  42nd.  Cong., 
Sess.  II,  Ch.  234,  sec.  11 320 

1876,  February  1,  19  U.  S.  Stats,  at  Large,  21 179 

1877,  February  27,  19  U.  S.  Stats,  at  Large,  244,  Ch.  69 313 

1878,  June  7,  20  U.  S.  Stats,  at  Large,  Ch.  160,  p.  99 899 

1878,  June  15,  20  U.  S.  Stats,  at  Large,  p.  139,  45th  Congress, 

2nd  Sess.,  Ch.  215,  sec.  10 312 

1882,  May  6,  22  U.  S.  Stats,  at  Large,  61,  Ch.  126 701 

1884,  May  17,  23  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  53,  sec.  5....      930 


lii  I  EXTRATERRITORIAL  CASES. 

Page. 

1884,  July  4,  23  U.  S.  Stats,  at  Large,  94,  Ch.  180 313 

1887,  February  23,  24  U.  S.  Stats,  at  Large,  Ch.  210..  349,  521,  523,  903 
1887,   March   3,   Sess.   II,   24   U.   S.   Stats,  at   Large,   Ch.   373, 

sec.  1 637 

1890,  May  2,  Sess.  I,  26  U.  S.  Stats,  at  Large,  Ch.  182,  sees.  11, 

31    - 658 

1890,  June  13,  26  U.  S.  Stats,  at  Large,  154,  51st  Cong.,  Sess.  I, 

Ch.    423 314 

1890,  August  8,  26  U.  S.  Stats,  at  Large,  p.  313,  51st  Cong., 
Sess.  I,  Ch.  728 315 

1891,  February  28,  26  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  385 

p.    797 314 

1892,  July  12,  Sess.  I,  27  U.  S.  Stats,  at  Large,  Ch.  159,  sec. 

2,  p.  116 576 

1892,  July  20,  Sess.  I,  27  U.  S.  Stats,  at  Large,  Ch,  209,  sec.  1, 

p.   252 890 

1892,  July  23,  27  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  234  p.  26....  313 

1893,  March  3,  27  U.  S.  Stats,  at  Large,  p.  563,  52nd  Congress, 

2nd   Sess.,   Ch.   204,    sec.    19 312 

1894,  August  15,  28  U.  S.  Stats,  at  Large,  Ch.  290,  p.  318 313 

1896,  May  28,  Sess.  I,  29  U.  S.  Stats,  at  Large,  181,  Ch.  252, 

Section    8 832 

Sections  19,  20,  p.  184 931 

1897,  January  30,  29  U.   S.  Stats,  at  Large,  Sess.  II  Ch.  109, 

p.    506 , 313 

1897,  March  3,  Sess.  11,  29   U.   S.   Stats,  at  Large,   Ch.  389, 

sees.  4,  7 719 

1897,  June  4,  30  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  II,  p.  56 930 

1898,  July  1,    (Bankruptcy  Act)    Sess.   II,   30  U.   S.   Stats,   at 
Large,    Ch.    541,   p.   544 897 

Section  56  b 900 

1898,  July  7,  30  U.  S.  Stats,  at  Large,  Ch.  576,  p.  717 125, 187,  661 

1899,  March  2,  30  U.  S.  Stats,  at  Large,  981,  54th  Cong.,  Sess. 

II,  Ch.  352,  sec.  17 314 

1899,  March  3,  30  U.  S.  Stats,  at  Large,  p.  1013,  Ch.  418 312 

1899,  March  3,   30   U.   S.   Stats,  at  Large,   Sess.  Ill,   Ch.   429, 

Title  I,  section   30 495 

Title  I,  section  41 547,  688 

Title  I,  section  46 199 

Title  I,  section  47 373 

Title  I,  section  52 863 

Title  I,  section  54 125,  688 

Title  I,  section  76 305 

Title  I,  section  102 284 

Title  I,  section  103 284 

Title  I,  section   151 190, 193 


REFERENCES.  liii 

1899 — Continued.  P^ige. 

Title  I,  section  152 191,  428 

Title  I,  section  186 415 

Title  I,  section  200 487 

Title  II,  section  7 262 

Title  II,  section  43 394 

Title  II,  section  90 317 

Title  II,  section  261 667 

Title  II,  section  262 667 

Title  II,  sections  271,  272 930 

Title  II,  section  408 930 

Title  II,  section  410 930 

Title  II,  section  461 316 

Title  II,  section  462 316 

Title  II,  sections  462-478 308,  313 

Title  II,  section  472 316,  332 

Title  II,  section  473 316 

Title  II,  section  474 316 

Title  II,  section  478 313,  327 

1900,  April  30,  31  U.  S.  Stats,  at  Large,  Ch.  339,  sec.  5,  p.  141..       658 
1900,   June   6,    31    U.    S.    Stats,    at   Large,    Sess.    I,    Ch,    786, 

Title  I,  section  6 930 

Title  I,  section  48 691 

Title  II,  section  6 .-. ■. 679 

Title  II,  section  25 222 

Title  II,  section  34 1001 

Title  II,  section  46 638 

Title  II,  section  92 973,  998 

Title  II,  section  97 973 

Title  II,  section  138 627,  936 

Title  II,  section  166 936 

Title  II,  section  242 809 

Title  II,  sections  384,  386 765 

Title  II,  section  463 321 

Title  II,  section  467 370,  692,  917 

Title  II,  section   467,    (2) 484 

Title  II,  section  471 499 

Title  II,  section  472 838 

Title   II,   section   472    (4) 547 

Title  II,  section  513 891 

Title  II,  section  644 , 810 

Title  II,  section  703 930,  932 

Title  II,  section  743 866 

Title  II,  section  744 834 

Title  II,  section  763 930 

Title  II,  section  774 670 

Title  II,  section  822 596 


liv  I  EXTRATERRITORIAL  CASES. 

1900 — Continued.  Patre. 

Title  II,  section  823 598 

Title  II,  section  869 698 

Title    II,    sections    941-948 932 

Title  II,  section  1040 669 

Title  II,  section  1044   (5) 742 

Title   III,    sections   21,   31 443 

Title  III,  section  22 753 

Title  III,  section  25 756 

Title  III,  section  26 444 

Title  III,  section  31 444 

Title  III,  section  32 816 

Title  III,  section  33 816 

Title  III,  section   138 648,936,939 

Title  III  section,  143 526 

Title  III,  section  147 936 

Title  III,  section  166 936,939 

Title  III,  section  169  (1) 526 

Title  III,  section   169    (4) 525 

Title  III,  section  228 760 

Title  III,  section  255 842,956 

1901,  February  2,  31  U.  S.  Stats,  at  Large,  758,  56th  Cong., 

Sess.  II,  Ch.  192,  sec.  38 314 

1901,  March  3,  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854 

Section    156 933 

Section    160 932 

Section    176 89a 

Section    375 526,  599,  725 

Section    380 937 

Section    381 846 

Section    387 937 

Section    393 1002 

Section    395 443,753 

Sections  435,  444 950 

Section    802 679 

Section    806 626 

Section    815 495 

Section    817 487 

Section    818 735 

Section    826 548 

Section    827 688 

Section    834 199,  549,  863 

Section    836 863 

Section    840 _ 391 

Section    842 125,620 

Section    843 305 

Section    865 210,  247,  428 


REFERENCES.  Iv 

1901— Continued.  Pae:'. 

Section    868 210,247 

Section    872 984,988 

Section   915 394 

Section  958 937 

Section  966 370,  371, 484,  547,  692,  838,  917,  918 

Section   966    (1) - 924,925,934 

Section  975 : 499 

Section    1064 566,599 

Sections  1108,  1109 892 

Section   1119 ■-       742 

Section   1160 525 

Section  1178 753,  868 

Sections  1184,  1185 842 

Section   1186 :. 868 

Section   1285 321 

Sections  1298,  1300 816 

Section   1537 638 

Section   1571 222 

Section    1626 627,  648,  772,  936,  939 

Section   1634 936 

1901,  March  3,  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  873,  p. 

1450  542 

1902,  Feb.  14,  32  U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  18,  p.  33 314 

1902,  June  30,  Sess.  I,  32  U.  S.  Stats,  at  Large,  Ch.  1329...       688 

Page  535,  sec.   827 630 

Sec.    842 620 

Page   537 937 

Page   543 321 

Sec.   1058 810 

1902,  July  1,  32  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  1369,  sec.  5..  359 
Section   10 659 

1903,  Feb.  9,  32  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  529,  p. 

806    659 

1903,  March  2,  32  U.  S.   Stats,  at  Large,   Sess.   II,  Ch.   978, 

pp.    947-952 656 

Section    2 499,  546,  662,  663,  664,  925 

Section   5 665 

Section    13 663 

Section    14 663,664 

Section   16 663 

Section    20 663 

Section  23 663 

1903,  March  3,  32  U.  S.  Stats,  at  Large,  57th  Cong.,  Sess.  II, 

Pt.  1,  Ch.  1012— 

Section  30 314 

Section  34 314 


Ivi  I  EXTRATERRITORIAL  CASES. 

Page. 

1904,  Apr.  28,  33  U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  1815,  sec. 

2,   p.   565 312 

1906,  March  19,  34  U.  S.  Stats,  at  Large,  Pt.  I,  p.  73,  sec.  5...  089 
1906,  June   29,  34   U.    S.   Stats,   at   Large,   Sess.   I,   Pt.   I,   Ch. 

3592,   sec.   15 380 

1906,  June  29,  34  U.  S.  Stats,  at  Large,  Pt.  I,  Sess.  I,  Ch.  3615, 

sec.    1 : 559 

1906,  June   30,   34   U.   S.    Stats,   at   Large,   Sess.   I,   Ch.   3934 
(Court  Act)  — 

Section    1 121,  309,  318,  401,  406,  442,  507,  616,  668,  875,  929 

Section    2 182, 191,  292,  296,  406,  528,  720,  724,  875 

Section    4 121, 172,  369,  401,  406,  928,  929 

Section    5 172, 182, 186,  341,  668,  813,  899,  918,  929 

Section   6 419 

Section  9 890,891 

1907,  Feb.   1,  34   U.    S.   Stats,   at   Large,  p.   870,   59th   Cong., 
Sess.  II,  Pt.  I,  Ch.  441 314 

1907,   Feb.  20,   34   U.   S.  Stats,  at  Large,   Pt.   I,  p.  907,  59th 

Cong.,  Sess.  II,  Ch.  1134,  sec.  30 314 

1907,  March  2,  34  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  2534— 

Section   2 709 

Section   4 421 

1907,  March  2,  34  U.  S.  Stats,  at  Large,  Pt.  I,  p.  1248,  Ch.,  2569  312 
1909,   March   2,   35    U.    S.    Stats,   at   Large,   Pt.   I,    Sess.    II, 

Ch.    235,    p.    679 877 

1909,  March  3,  35  U.  S.  Stats,  at  Large,  Pt.  I,  Sess.  II,  Ch. 

250,    p.    711 541 

1910,  Apr.  15,  36  U.  S.  Stats,  at  Large,  Pt.  I,  p.  301 

Section   28 990 

Section    29 991 

Section   30 991 

Section    58 991 

1910,  June  25,  36  U.  S.  Stats,  at  Large,  Pt.  I,  Sess,   II,  Ch. 

385,  p.   785 542 

1910,  June  25,  36  U.   S.   Stats,  at  Large,   Sess.   II,  Ch.  395— 

Page  825 262 

Page   826 402 

1912,  Aug.  24,  37  U.  S.  Stats,  at  Large,  Pt.  I,   Sess.  II,  Ch. 

387,   sec.   3 , 656 

1913,  March  1,  37  U.  S.  Stats,  at  Large,  p.  699,  62nd  Cong., 

Pt.   I,  Sess.   Ill,   Ch.  90 815 

1913,  March  4,  37  U.  S.   Stats,  at  Large,   Pt.  I,  Ch.  150  pp. 

997  et  seq 313 

1914,  Jan.  17,  38  U.  S.  Stats,  at  Large,  Pt.  I,  Sess.  II,  Ch.  9, 

P-    275 349 


REFERENCES.  Ivii 

Page. 

1914,  Jan.  17,  38  U.  S.  Stats,  at  Large,  Pt.  II,  Sess.  II,  Ch.  9, 

sec.  4,  p.  276 403 

1915,  Feb.  5,  38   U.   S.   Stats,  at  Large,  Pt.   I,   Sess.  Ill,  Ch. 

23,    sec.    6,   p.    806 877 

1915,  March   4,   38   U.    S.    Stats,   at   Large,   Pt.   I,    Sess.    Ill, 

Ch.  145,  pp.  1122,  1123 878 

1916,  August  29,  39   U.   S.   Stats,  at  Large,  Sess.  I,  Ch.  416, 

sees.  6,  7,  p.  547 657 

1920,  June  4,  41  U.  S.  Stats,  at  Large 884 

Federal  Judicial  Code — 

Section    1 720 

Section   24 405 

Section    41 401 

Section   250 , 660 

Section  256 405 

Section   289 : 721 

Section    291 721 

Federal   Penal   Code — 

Section    37 792,903 

Section   138 413 

Sections  148,  149 555 

Section   273 155 

Section    274 155 

Section  275 155,  516,  680 

Section  276 790,  916,  960 

Section  276    (4) 575 

Section    284 415,  519,  786,  960,  963 

Section  287 688 

Section   316 785,786 

Section    332 415,963 

Revised   Statutes — 

Section   31   note 701 

Section   363 832 

Section    730 401 

Section   771 419 

Sections  823  et  seq 892 

Section   858 86,599 

Sections    866-8 812 

Section    915 86 

Section    916 86,472 

Section   1014 402 

Section   1025 177 

Section   1043 177 

Section  1044 169, 170, 174, 175, 177 

Section   1342    (Articles   of   War,   114) 816 

Section    1709 292,296 


Iviii  I  EXTRATERRITORIAL  CASES. 

Revised  Statutes — Continued. .  Page. 

Section   1710 292,  296 

Section    1711 292,  296 

Section    1994 318,  420,  481 

Section    1999 181 

Section    2037 320 

Section    2159 135 

Section    2160 135 

Section    2161 135 

Section    2169 481 

Section    4082 320 

Section    4083 472 

Sections   4083    et   seq 170,172,292,294,471 

Section    4085 442,  456,  482,  507,  603 

Section    4086..  96, 122, 170, 172, 181, 199,  262,  289,  310,  319,  369,  371 
400,  443,  481,  544,  602,  689,  755,  760,  765,  929,  951 

Section    4087 177 

Section    4091 182, 183,  531 

Section    4092 531 

Section    4093 531 

Sections  4093-4096   720 

Section    4097 530 

Section    4101 285,  331,  543 

Section    4106 172 

Section    4107 172 

Section  4117 171, 172, 174, 181,  294 

Section    4118 171, 172, 181 

Section  4119   181 

Section    4541 718 

Section    4544 718 

Section    5391 125,661 

Sections   5488-5494  199 

Section   5546 542 

U.  S.  Comp.  St.   (1913)  — 

Paragraph  1540  472 

Paragraphs  7633-7676  471 

2.  Acts  of  Parliament. 

39  Edw.  Ill,  31b 322 

9   Hen.  VI,   34 322 

18    Henry   VI,    C.    19 289 

32  322 

7  George  II,    (Sir  John   Barnard's   Act) 114 

80  Geo.  II    (1757),  cap.  24,  sec.  1 84 

6th  &  7th  Vict.,  c.  94  (1843,  Foreign  Jurisdiction  Act) 14 

8  &  9  Vict 114 

15  &  16  Vict.  c.  24,  Lord  St.  Leonard's  Act 648 


REFERENCES.  lix 

Page. 

24   Vict.,   c.    10 21 

53  &  54  Vict.   (1890,  Foreign  .Jurisdiction  Act),  Ch.  37 97 

1894   (Indian  Land  Acquisition  Act) 70,74 

3.  British   Orders   in   Council. 

1860,    August    27,    (Ottoman    Empire) 24 

1865    (China  and  Japan)  — 

Article  5 gO 

Article   37 372 

1878    (China    and   Japan)  — 

Article    6     (5) 872 

1884,  Oct.  17  (Zanzibar),  sees.  6-8 67,68 

1904  (China  and  Korea)  — 

Article  21 g77 

Article    23 g76 

Article  70    (I,  III) ZZ^ZZZZZZ.  351 

Article  151    (3) 32 

Jf.  U.  S.  Court  Regulations  for  China.. 

Section  5  973 

Section    12 476,927 

Section   15 362 

Section  21 ggg 

Section   37  47g 

Section  38 475 

Section   41   •. 206 

Section  42  349^  341 

Section    43    340^  342 

Section   51 371^  918 

Section   55   ggg 

Section  57 288 

Section   58   288 

Section  81 475 

Section   82   : 170^  175^  176 

Section  83   Igg 

Section    87    509 

U.  S.  Circuit  (9th)   Court  of  Appeals  Rules  5,  30   (1) 868 

5.  Miscellaneous  Codes  and  Statutes. 

California  Civil   Code,  sec.   1276 648 

Code  of  Civ.  Proc,  sec.  1962  (5,  6) 552 

Penal   Code,   sec.   647 I93 

Chinese  (Manchu)   Code  (Staunton's  Translation) 710,711 

Nationality  Act,  1909 '7II 

Penal  Code,  art.  266 354 

District  of  Columbia  Comp.  Stats.  Ch.  XVI,  sec.   155 457,  478 


Ix  I  EXTRATERRITORIAL  CASES. 

French  Civ.  Code —  Page. 

Article    1108    - 580 

Article  1150 741,923 

Articles   1782,   1952 606 

Article    2262 81 

German  Civ.  Code — 

Article  154 580 

Article    252 741,923 

Article    927 81 

Illinois   Public   Utilities   Act 664' 

Italian  Civ.  Code,  art.  1104 580 

Japanese  Civ.  Code,  art.  416 741,923 

Kentucky  Statutes  (1903)  sees.  468,  4288 648 

Louisiana  Rev.  Civil  Code,  art.  1934   (1) 741,923 

Maryland  Act  of  1777,  sec.  12 320 

Act  of  1793,  sec.   14 457,478 

Massachusetts  Revised  Laws,  1902,  Part  II,  Ch.  212,  sec.  59 193 

Nebraska  Rev.  Stats.   (1913),  sees.  1205,  1237,  8451 872 

New  York  Code  Civ.  Proc,  sees.  376,  382 473 

Code  Crim.  Proc,  sec.  887,  subdiv.  9,  added  L.,  1900,  c.  281..       193 

2  Rev.  Stats.,  p.  63,  sec.  40   (from  Eng.) 648 

Oregon,  Hill,  Ann.  Laws,  sec.  1958 193 

Spanish  Civ.  Code — 

Article  816 526 

Articles   1105,   1107 741,  923 

Article  1261 580,586 

Articles  1601,  1783,  1784 606 

Article  1857 212 

Article  1875 212 

Article  1880 212 

Spanish  Mortgage  Law- 
Article  2 '. 212 

Article  3 : 212 

Article  23 212 

Article  27 212 

Article  146 212 

Article  396 212 

Spanish   (Philippine)  Penal  Code,  art.  8,  (4  [2]) 575 

Spanish  Penal  Code,  art.  10    (17,  18) 307 

Article   79 517 

Article    358    413 

Texas    Penal    Code    (White,    Annotated),    Title    XI,    Chap.    7, 

Art.   413 193 


REFERENCES.  Ixi 

IV.    TREATIES  AND  CONVENTIONS. 

Page. 

America    and    Britain,    1870 706 

America  and  China — 

1844    1,  35,  318,  397,  471 

Article    XXI    106,  309,  397,  517,  870 

Article    XXV    442,482,898 

1858,  Article  XI 2,  309,  397,  874 

Article    XVII 316,  318,  397 

Article   XXVII 471,  617 

1868,    Article    V 711 

Article   VI 711 

1880,   Article   II 521 

1903 3 

Article    XVII    309 

America    and   Japan — 

1857,    Article    IV 51 

1858  30 

Article    VI    28, 52 

Article    XII 52 

1894,  Article  XVIII 398 

America  and   Turkey — 

1830  34 

Article  III  38 

1862,   Article   1 36 

Britain  and  China — 

1858    353 

1876    (Chefoo   Convention)    353 

1894    (Regarding  Burmah),  Article  II 353 

1908  353 

1911  353,354 

Britain   and   Zanzibar,    1886,    Articles   XVI-XX    71,  72 

Universal  Postal  Convention,  1897    (30  U.  S-  Stats,  at  Large, 

p.   1641),  art.  16 348 


THE  SINO-AMERICAN  EXTRATERRITORIAL  TREATIES. 
[Wang  Hiya,  July  3,  1844.]^ 

Article  XXI. 

"Subjects  of  China  who  may  be  guilty  of  any  criminal 
act  towards  citizens  of  the  United  States  shall  be  arrested 
and  punished  by  the  Chinese  authorities  according  to  the 
laws  of  China;  and  citizens  of  the  United  States  who  may 
commit  any  crime  in  China  shall  be  subject  to  be  tried  and 
punished  only  by  the  Consul,  or  other  public  functionary 
of  the  United  States,  thereto  authorized,  according  to  the 
laws  of  the  United  States.  And  in  order  to  the  prevention 
of  all  controversy  and  disaffection,  justice  shall  be  equitably 
and  impartially  administered  on  both  sides." 


'  "June  16,  1844,  Tsi  Yeng  arrived  outside  Macao  and  next  day 
entered  the  village  of  Wang  Hiya,  within  the  barrier,  but  outside 
the  walls  of  Macao,  and  with  his  suite  lodged  in  a  temple  which 
had  been  prepared  for  him.  On  the  18th  of  June  he  and  his  associates 
paid  a  visit  of  ceremony  to  the  American  legation  and  this  visit 
was  returned  next  day.  On  the  21st  of  June  Gushing  communicated 
to  Tsi  Yeng  a  project  of  a  treaty.  In  communicating  it  Gushing 
stated  (1)  that  the  United  States  desired  to  treat  on  the  basis  of 
'cordial  friendship  and  firm  peace,'  (2)  that  the  United  States  did 
not  desire  any  portion  of  the  territory  of  Ghina,  and  (3)  that,  while 
the  United  States  would  be  happy  to  treat  on  the  basis  of  opening 
all  ports  and  imposing  no  export  duties,  precisely  as  was  done 
in  the  United  States,  yet  in  the  project  submitted  the  wishes  of 
China  were  heeded,  and  only  a  free  and  secure  commerce  with  the 
five  open  ports  was  requested.  By  agreement  between  the  Commis- 
sioners, Messrs.  Webster,  Bridgman,  and  Parker  on  the  one  side, 
and  Messrs.  Hwang,  Chow,  and  Pwan  on  the  other,  discussed  this 
project  day  after  day,  sometimes  at  the  American  legation  and  some- 
times at  Wang  Hiya,  under  the  supervision  of  the  respective  Com- 
missioners, till  it  assumed  the  form  in  which  it  was  finally  signed 
on  July  3,  1844."     Moore,  Int.  Law  Dig.,  V,  419. 

14008  O.  W. 


2  I  EXTRATERRITORIAL  CASES. 

Article  XXV. 

"All  questions  in  regard  to  rights,  whether  of  property 
or  person,  arising  between  citizens  of  the  United  States  in 
China,  shall  be  subject  to  the  jurisdiction,  and  regulated  by 
the  authorities,  of  their  own  Government.  And  all  con- 
troversies occurring  in  China  between  citizens  of  the  United 
States  and  the  subjects  of  any  other  Government  shall  be 
regulated  by  the  treaties  existing  between  the  United  States 
and  such  Governments,  respectively,  without  interference 
on  the  part  of  China."  ' 

[Tientsin,  June  18,  1858.] 

Article  XI. 

"All  citizens  of  the  United  States  of  America  in  China, 
peaceably  attending  to  their  affairs,  being  placed  on  a  com- 
mon footing  of  amity  and  good  will  with  the  subjects  of 
China,  shall  receive  and  enjoy  for  themselves  and  everything 
appertaining  to  them,  the  protection  of  the  local  authorities 
of  Government,  who  shall  defend  them  from  all  insult  or 
injury  of  any  sort.  If  their  dwellings  or  property  be 
threatened  or  attacked  by  mobs,  incendiaries,  or  other 
violent  or  lawless  persons,  the  local  officers,  on  requisition 
of  the  Consul,  shall  immediately  despatch  a  military  force 
to  disperse  the  rioters,  apprehend  the  guilty  individuals, 
and  punish  them  with  the  utmost  rigor  of  the  law.  Subjects 
of  China  guilty  of  any  criminal  act  toward  citizens  of  the 
United  States  shall  be  punished  by  the  Chinese  authorities 
according  to  the  laws  of  China ;  and  citizens  of  the  United 
States,  either  on  shore  or  in  any  merchant  vessel,  who  may 
insult,  trouble  or  wound  the  persons  or  injure  the  property 

"  "The  treaty  of  Wanghia  marks  a  transition — the  end  of  the  pre- 
paratory period  and  the  beginning  of  recognized  official  relations 
between  the  United  States  and  China."  Latourette,  Early  Relations 
between  the  United  States  and  China,  144. 

"Its  fulness  of  details  and  clear  exhibition  of  the  rights  conceded 
by  the  Chinese  government  to  foreigners  dwelling  within  its  borders, 
made  it  the  leading  authority  in  settling  disputes  among  them  until 
1860."     Williams,  The   Middle   Kingdom,   II,   567. 


SINO-AMERICAN  EXTRATERRITORIAL  TREATIES.  3 

of  Chinese,  or  commit  any  other  improper  act  in  China, 
shall  be  punished  only  by  the  Consul  or  other  public  func- 
tionary thereto  authorized,  according  to  the  laws  of  the 
United  States.  Arrests  in  order  to  trial  may  be  made  by 
either  the  Chinese  or  the  United  States  authorities." 

^  *  *  sf  *  *  * 

Article  XXVII. 

"All  questions  in  regard  to  rights,  whether  of  property 
or  person,  arising  between  citizens  of  the  United  States  in 
China  shall  be  subject  to  the  jurisdiction  and  regulated  by 
the  authorities  of  their  own  Government;  and  all  contro- 
versies occurring  in  China  between  citizens  of  the  United 
States  and  the  subjects  of  any  other  Government  shall  be 
regulated  by  the  treaties  existing  between  the  United  States 
and  such  Governments,  respectively,  without  interference 
on  the  part  of  China." 

[Shanghai,  October  8,  1903.] 

Article  XV. 

"The  Government  of  China  having  expressed  a  strong 
desire  to  reform  its  judicial  system  and  to  bring  it  into 
accord  with  that  of  Western  nations,  the  United  States 
agrees  to  give  every  assistance  to  such  reform  and  will 
also  be  prepared  to  relinquish  extraterritorial  rights  when 
satisfied  that  the  state  of  the  Chinese  laws,  the  arrange- 
ments for  their  administration,  and  other  considerations 

warrant  it  in  so  doing." 

******* 

Article  XVII. 

"It  is  agreed  between  the  High  Contracting  Parties  hereto 
that  all  the  provisions  of  the  several  treaties  between  the 
United  States  and  China  which  were  in  force  on  the  first 
day  of  January,  A.  D.  1900,  are  continued  in  full  force  and 
effect  except  in  so  far  as  they  are  modified  by  the  present 
Treaty  or  other  treaties  to  which  the  United  States  is  a 
party." 


4  I  EXTRATERRITORIAL  CASES. 

THE  RATIONALE  OF  EXTRATERRITORIALITY. 
[September  29,  1844,  MS.  State  Dept.] 

Gushing,  Commissioner  (To  Secretary  of  State  Calhoun)  : 

I  entered  China  with  the  formed  general  conviction  that 
the  United  States  ought  not  to  concede  to  any  foreign  state, 
under  any  circumstances,  jurisdiction  over  the  life  and  lib- 
erty of  a  citizen  of  the  United  States,  unless  that  foreign 
state  be  of  our  own  family  of  nations — in  a  word,  a  Chris- 
tian state. 

The  states  of  Christendom  are  bound  together  by  treaties 
which  confer  mutual  rights  and  prescribe  reciprocal  obliga- 
tions. They  acknowledge  the  authority  of  certain  maxims 
and  usages,  received  among  them  by  common  consent,  and 
called  the  law  of  nations;  but  which,  not  being  fully  ac- 
knowledged and  observed  by  the  Mohammedan  or  Pagan 
states,  which  occupy  the  greater  part  of  the  globe,  is,  in 
fact,  only  the  international  law  of  Christendom.  Above  all, 
the  states  of  Christendom  have  a  common  origin,  a  common 
religion,  a  common  intellectuality ;  associated  by  which  com- 
mon ties,  each  permits  to  the  subjects  of  the  other,  in  time 
of  peace,  ample  means  of  access  to  its  dominions  for  the 
purpose  of  trade,  full  right  to  reside  therein,  to  transmit 
letters  by  its  mails,  to  travel  in  its  interior  at  pleasure, 
using  the  highways,  canals,  stagecoaches,  steamboats,  and 
railroads  of  the  country  as  freely  as  the  native  inhabitants. 
And  they  hold  a  regular  and  systematic  intercourse  as  gov- 
ernments, by  means  of  diplomatic  agents  of  each,  residing 
in  the  courts  of  the  others,  respectively.  All  these  facts 
impart  to  the  states  of  Christendom  many  of  the  qualities 
of  one  confederated  republic. 

How  different  is  the  condition  of  things  out  of  the  limits 
of  Christendom !  From  the  greater  part  of  Asia  and  Africa, 
individual  Christians  are  utterly  excluded,  either  by  the 
sanguinary  barbarism  of  the  inhabitants,  or  by  their  phren- 
zied  bigotry,  or  by  the  narrow-minded  policy  of  their  gov- 
ernments. To  their  courts,  the  ministers  of  Christian  gov- 
ernments have  no  means  of  access  except  by  force,  and 
at  the  head  of  fleets  and  armies.     As  between  them  and 


RATIONALE   OF   EXTRATERRITORIALITY.  5 

US,  there  is  no  community  of  ideas,  no  common  law  of 
nations,  no  interchange  of  good  offices ;  and  it  is  only  during 
the  present  generation  that  treaties,  most  of  them  imposed 
by  force  of  arms  or  by  terror,  have  begun  to  bring  down 
the  great  Mohammedan  and  Pagan  governments  into  a 
state  of  inchoate  peaceful  association  with  Christendom. 

To  none  of  the  governments  of  this  character,  as  it 
seemed  to  me,  was  it  safe  to  commit  the  lives  and  liberties 
of  citizens  of  the  United  States.  In  our  treaties  with  the 
Barbary  States,  with  Turkey,  and  with  Muscat,  I  had  the 
precedent  of  the  assertion,  on  our  part,  of  more  or  less  of 
exclusion  of  the  local  jurisdiction,  in  conformity  with  the 
usage,  as  it  is  expressed  in  one  of  them,  observed  in  regard 
to  the  subjects  of  other  Christian  states. 

Mr.  Urquhart  thinks  these  concessions  have  not  been 
wise  on  the  part  of  the  Mohammedan  states.  It  may  be  so 
for  them;  but  it  will  be  time  enough  for  them  to  obtain 
jurisdiction  over  Christian  foreigners  when  these  last  can 
visit  Mecca,  Damascus,  or  Fez,  as  safely  and  freely  as  they 
do  Rome  and  Paris,  and  when  submission  to  the  local  juris- 
diction becomes  reciprocal. 

Owing  to  the  close  association  of  the  nations  of  Christen- 
dom, and  the  right  their  people  mutually  enjoy  and  exercise 
of  free  entry  into  each  other's  country,  there  is  reciprocity 
in  the  recognition  of  the  local  jurisdiction.  Not  so  in  the 
case  of  the  great  Moslem  or  Pagan  states  of  Asia  and  Africa, 
whose  subjects  do  not  generally  frequent  Europe  and 
America,  either  for  trade,  instruction,  or  friendship. 

In  China,  I  found  that  Great  Britain  had  stipulated  for 
the  absolute  exemption  of  her  subjects  from  the  jurisdiction 
of  the  empire ;  while  the  Portuguese  attained  the  same  ob- 
ject through  their  own  local  jurisdiction  at  Macao.     *     *     * 

I  deemed  it,  therefore,  my  duty,  for  all  the  reasons  as- 
signed, to  assert  a  similar  exemption  on  behalf  of  citizens 
of  the  United  States.  This  exemption  is  agreed  to  in  terms 
by  the  letter  of  the  treaty  of  Wang  Hiya.  And  it  was  fully 
admitted  by  the  Chinese,  in  the  correspondence  which  oc- 
curred contemporaneously  with  the  negotiation  of  the  treaty, 
on  occasion  of  the  death  of  Sha  Aman.  By  that  treaty, 
thus  construed,  the  laws  of  the  Union  follow  its  citizens. 


6  I  EXTRATERRITORIAL  CASES. 

and  its  banner  protects  them,  even  within  the  domain  of 
the  Chinese  Empire. 

The  treaties  of  the  United  States  with  the  Barbary 
powers,  and  with  Muscat,  confer  judicial  functions  on  our 
consuls  in  those  countries,  and  the  treaty  with  Turkey 
places  the  same  authority  in  the  hands  of  the  minister  or 
consul,  as  the  substitute  for  the  local  jurisdiction,  which, 
in  each  case  of  controversy,  would  control  it  if  it  arose  in 
Europe  or  America.  These  treaties  are  in  this  respect  ac- 
cordant with  general  usage,  and  with  what  I  conceive  to  be 
the  principles  of  the  law  of  nations  in  relation  to  the  non- 
Christian  powers. 

In  extending  these  principles  to  our  intercourse  with 
China,  seeing  that  I  have  obtained  the  concession  of  ab- 
solute and  unqualified  extraterritoriality,  I  considered  it 
well  to  use  in  the  treaty  terms  of  such  generality,  in  de- 
scribing the  substitute  jurisdiction,  as,  while  they  hold  un- 
impaired the  customary  or  la w-of -nations  jurisdiction,  do 
also  leave  to  Congress  full  and  complete  direction  to  define, 
if  it  please  to  do  so,  what  officers,  with  what  powers,  and 
in  what  form  of  law,  shall  be  the  instruments  for  the  pro- 
tection and  regulation  of  the  citizens  of  the  United  States. 

And  it  only  remains,  in  case  the  treaty  shall  be  ratified, 
to  adopt  such  legislative  provisions  as  the  wisdom  of  the 
President  and  of  Congress  may  desire  or  approve  to  give 
effect  to  the  concessions  which  the  Chinese  government  has 
made  in  this  matter  and  which  seem  to  me  so  important 
in  principle  and  so  material  to  the  honor  and  interests  of 
the  United  States. 


JURISPRUDENCE  AND  JURISDICTION. 

[September  19,  1855,  Opinions,  Attorneys-General,  VII,  503-505, 

508-511.] 

CUSHING,  Attorney-General  (To  Secretary  of  State  Marcy)  : 

In  thus  retaining  jurisdiction  of  our  citizens  in  China, 
and  providing  persons  to  exercise  it,  we  could  not  rely  upon 


JURISPRUDENCE   AND    JURISDICTION.  7 

the  law  of  nations  exclusively,  nor  upon  usages,  or  a  cus- 
tomary local  code  applicable  to  the  emergency,  such  as 
exists  in  the  Levant.  Accordingly,  the  statute  contains  the 
following  important  provisions: 

That  such  jurisdiction  in  criminal  and  civil  matters  shall,  in  all 
cases,  be  exercised  and  enforced  in  conformity  with  the  laws  of  the 
United  States,  which  are  hereby,  so  far  as  is  necessary  to  execute 
said  treaty,  extended  over  all  citizens  of  the  United  States  in  China, 
(and  over  all  others  to  the  extent  that  the  terms  of  the  treaty  jus- 
tify or  require),  so  far  as  such  laws  are  suitable  to  carry  said  treaty 
into  effect;  but  in  all  cases  where  such  laws  are  not  adapted  to  the 
object,  or  are  deficient  in  the  provisions  necessary  to  furnish  suitable 
remedies,  the  common  law  shall  be  extended  in  like  manner  over  such 
citizens  and  others  in  China :  and  if  defects  still  remain  to  be  sup- 
plied, and  neither  the  common  law  nor  the  statutes  of  the  United 
States  furnish  appropriate  and  suitable  remedies,  the  Commissioner 
shall,  by  decrees  and  regulations,  which  shall  have  the  force  of  law, 
supply  such  defects  and  deficiencies.'' 

The  system  of  law  is  composed,  therefore,  of — 

1.  The  laws  of  the  United  States,  comprehending  the 
Constitution,  treaties,  acts  of  Congress,  equity  and  admir- 
alty law,  and  the  law  of  nations,  public  and  private,  as 
administered  by  the  Supreme  Court,  and  Circuit  and  Dis- 
trict Courts  of  the  United  States,  and,  in  certain  cases, 
regulations  of  the  Executive  Departments. 

2.  "The  common  law."  In  this  respect,  the  statute  fur- 
nishes a  code  of  laws  for  the  great  mass  of  civil  or  munic- 
ipal duties,  rights,  and  relations  of  men,  such  as,  within 
the  United  States,  are  of  the  resort  of  the  courts  of  the 
several  States. 

Some  general  code  in  these  respects  became  necessary, 
because  the  law  of  the  United  States — that  is,  the  federal 
legislation — does  not  include  these  matters,  and,  of  itself, 
would  be  of  no  avail  toward  determining  any  of  the  ques- 
tions of  property,  succession,  the  contract,  which  constitute 
the  staple  matter  of  ordinary  life. 

For  such  of  the  States  as  were  founded  in  whole  or  chief 
part  by  colonists  from  Great  Britain  and  Ireland,  or  their 
descendants,  the  law  of  England,  as  it  existed  in  each  of 

*Act  of  Congress  of  August  11,  1848,  9  U.  S.  Stats,  at  Large, 
276,  sec.  4. 


8  I  EXTRATERRITORIAL  CASES. 

those  States  at  the  time  of  their  separation  from  Great 
Britain,  with  such  modifications  as  that  law  had  undergone 
by  the  operation  of  colonial  adjudication,  legislation,  or 
usage,  became  the  common  law  of  such  independent  State. 

Meantime,  in  addition  to  many  changes,  differing  among 
themselves,  which  the  common  law  underwent  in  each  of 
the  colonies  before  it  became  a  State,  that  common  law  has 
been  yet  more  largely  changed  by  the  legislation  and  ju- 
dicial construction  of  each  of  the  States. 

Hence,  it  was  not  enough  to  enact  that  the  common  law 
should  intervene  to  supply,  in  China,  deficiencies  in  the  law 
of  the  United  States.  For  the  question  would  be  sure  to 
arise:  What  common  law?  The  common  law  of  England 
at  the  time  when  the  British  colonies  were  transmuted 
into  independent  republican  States?  Or  the  common  law 
of  Massachusetts?  Or  that  of  New  York,  or  Pennsylvania, 
or  Virginia?  For  all  these  are  distinct,  and  in  many  im- 
portant respects  diverse,  "common  law." 

To  dispose  of  this  difficulty,  the  statute  went  one  step 
further,  and  enacted,  that — 

3.  "Decrees  and  regulations"  may  be  made  from  time  to 
time  by  the  Commissioner,  which  shall  have  the  force  of  law, 
and  supply  any  defects  or  deficiencies  in  the  common  law 
and  £he  laws  of  the  United  States. 

This  power  of  supplementary  decree  or  regulation  serves 
to  provide  for  many  cases  of  criminality,  which  neither 
federal  statutes  nor  the  common  law  would  cover. 

In  addition  to  which,  it  is  enacted  that  the  Commissioner, 
with  advice  of  the  several  consuls,  shall  prescribe  the  forms 
of  processes  to  be  issued,  the  mode  of  executing  the  same, 
the  form  of  oaths,  the  costs  and  fees  to  be  allowed  and  paid; 
and  generally  to  make  all  such  decrees,  regulations,  and 
orders,  under  the  act,  as  the  exigency  may  demand,  which 
shall  be  "binding  and  obligatory  until  annulled  or  modified 
by  Congress.^ " 

In  certain  respects,  therefore,  the  Commissioner  legis- 
lates for  citizens  of  the  United  States  in  China;  it  being 
required,  meanwhile,  that  such  "regulations,  orders,  and  de- 

»Id..  Sec.  5. 


JURISPRUDENCE   AND   JURISDICTION.  9 

crees,  as  he  may  make  in  the  premises,  shall  be  transmitted 
to  the  President,  to  be  laid  before  Congress  for  its  revi- 
sion.^ " 

******* 

The  statute  provision  as  to  the  trial  of  civil  "cases"  is, 
that  "the  consuls  aforesaid,  and  each  of  them,  at  the  port 
for  vi^hich  he  is  appointed,  shall  have  jurisdiction  as  is 
herein  provided,  in  all  civil  cases  arising  under  said  treaty, 
wherein  the  damage  demanded  does  not  exceed  five  hundred 
dollars,"  in  which  cases  the  consular  decision  may  be  final : 
"but  if  in  his  judgment  any  case  involves  legal  perplexities, 
and  assistance  will  be  useful,  or  if  the  damage  demanded 
exceeds  five  hundred  dollars,"  then  he  must  have  assessors, 
and  his  decision  is  subject,  in  case  of  difference  of  opinion, 
to  an  appeal  to  the  Commissioner.* 

Now,  there  are  processes  which  do  not  involve  any  ques- 
tion of  "damages"  whatever,  but  which  are,  nevertheless, 
of  primary  importance  and  utility:  such  as  the  writ  of 
habeas  corpus.  Other  cases  of  controversy  at  law  exist, 
which  concern  property,  but  in  which  no  question  of  mere 
damage  is  involved,  unless  incidentally,  such  as  many  suits 
in  rem,  and  many  others  de  re. 

There  is  another  class  of  cases  of  property,  in  which  no 
damages  are  demanded,  but  equitable  relief  only,  such  as 
most  matters  in  chancery. 

There  is  another  class  of  processes,  which  have  for  their 
object  to  enforce  or  to  protect  rights  in  cases  already  sub 
judice  otherwise;  such  as  writs  of  mandamus,  supersedeas, 
and  prohibition. 

Finally,  there  is  a  vast  body  of  justiciable  rights,  to  which 
the  phrase  of  "damages  demanded"  can  by  no  possibility 
apply,  being  questions  of  personal  right,  of  the  domestic 
relations,  of  inheritance,  or  of  testamentary  disposition. 
This  includes  cases  of  copartnership  or  other  joint  interest 
in  real  or  personal  estate,  of  insolvency,  of  divorce,  of 
alimony,  of  wills,  and  of  intestate  successions. 

As  to  the  distribution  of  all  these  matters  between  the 
Commissioner   and  the   consuls,   the   statute   is   absolutely 

'  Id.,  Sec.  6.  *  Id.,  Sec.  11. 


10  I  EXTRATERRITORIAL  CASES. 

silent:  and  that  distribution  is  to  be  made  by  regulation, 
in  subordination  always  to  other  specific  rules  of  law. 

Therefore  it  is,  that,  in  several  provisions  ^  of  the  statute, 
jurisdiction  is  conferred  in  general  terms  on  both  the  Com- 
missioner and  the  consuls,  and  that  a  general  power  to 
issue  all  needful  processes,  as  well  as  to  make  regulation 
of  all  processes,  is  conferred  on  the  Commissioner."  These 
general  powers,  we  have  seen,  are  defined  and  limited  as 
to  certain  "civil  cases"  in  other  parts  of  the  statute,  which 
limitation  depends  on  the  nature  of  the  case,  as  indicated 
by  the  question  of  "damages." 

The  samp,  general  powers  are  also  limited  more  or  less 
in  the  sense  of  locality:  for  it  is  enacted  that 

"The  said  functionaries  [that  is,  the  Commissioner  and  the  consuls, 
being  '(in) vested  with  all  the  judicial  authority  necessary  to  execute 
the  provisions'  of  the  treaty]  shall  entertain  jurisdiction  in  matters 
of  contract  at  the  port  where,  or  nearest  to  which,  the  contract  was 
made,  or  at  which,  or  nearest  to  which,  it  was  to  be  executed:  and  in 
all  other  matters,  at  the  port  where,  or  nearest  to  which,  the  cause  of 
controversy  arose,  or  at  the  port  where,  or  nearest  to  which,  the 
damage  complained  of  was  sustained — any  such  port  above  named 
being  always  one  of  the  five  mentioned  in  the  treaty."  ' 

These  conditions  of  locality  are  to  be  applied,  so  far  as 
they  may  be  in  their  nature  applicable,  to  all  cases.  To 
many  cases  of  contract  and  of  damage  sustained,  the  con- 
dition of  one  of  the  five  ports  is  inapplicable  by  its  very 
nature.  Thus,  it  may  be  the  case  of  a  contract  made  and 
to  be  executed,  or  of  damage  sustained,  in  Europe  or  in 
America,  the  parties  being  now  in  China.  And  the  con- 
dition does  not  apply  in  terms  to  anything  but  matters  of 
"contract"  or  "damage  sustained."  What  shall  be  said,  if 
it  be  a  question  of  probate  of  will,  of  intestacy,  or  of  divorce  ? 

Nor  does  the  other  form  of  the  condition — "the  port 
where,  or  nearest  to  which,  the  cause  of  controversy  arose" 
— satisfy  all  the  desiderata  of  the  subject.  There  may  be 
no  "controversy"  or  "cause  of  controversy"  in  the  matter, 
though  it  requires  judicial  determination,  as  the  probate 
of  a  will,  which  is  at  once  the  source  and  the  authentication 
of  title.     And  in  many  matters  of  "controversy,"  it  may 

'  Sees.  1-3.  •  Sees.  5  and  13.  '  Sec.  3. 


JURISPRUDENCE  AND  JURISDICTION.  ^  H 

be  difficult,  if  not  impossible,  to  show  where  the  "cause  of 
controversy"  arose. 

But  the  statute  does  not  undertake  or  profess  to  provide 
specially  for  all  questions,  leaving  many  to  the  regulations 
of  the  Commissioner.  Where  the  question  of  place  of  judg- 
ment is  determined  by  the  statute,  of  course  that  controls 
the  Commissioner  as  well  as  the  consuls.  In  all  other  cases, 
the  rules  and  analogies  of  law  on  the  subject  of  jurisdiction, 
having  reference  to  the  situs  of  the  thing,  or  the  residence 
or  commorancy  of  parties,  afford  a  sufficient  guide  to  the 
regulative  discretion  of  the  Commissioner.  Whatever  is 
determined  as  to  the  person,  who  shall  exercise  jurisdiction, 
must  of  course  be  conciliated  with  what  shall  be  determined 
as  to  the  place  of  jurisdiction. 

Independently  of  this,  it  seems  to  me  that  the  Commis- 
sioner and  the  consuls  should  make  provision,  in  the  manner 
indicated  by  the  statute,"  that  is,  by  separate  or  by  joint 
regulations,  concerning  all  those  things,  the  jurisdiction  of 
which  it  leaves  indeterminate,  and,  therefore,  subject  to 
regulation. 

Matters  of  insolvency,  intestacy,  probate  of  will,  divorce, 
division  or  regulation  of  copartnership  or  other  common 
interests,  habeas  corpus,  specific  performance,  trust,  dis- 
covery, seamen's  wages,  charter-party,  bottomry,  and  other 
matters  of  equity,  admiralty,  or  ecclesiastical  law,  are,  for 
the  most  part,  of  local  nature,  and  requiring  prompt  inter- 
locutory action  of  judicial  authority;  and,  therefore,  seem 
to  be  fit  subjects  for  the  original  jurisdiction  of  the  consuls, 
with  proper  regulations  for  appeal  to  the  Commissioner. 

On  the  other  hand,  some  processes,  like  mandamus,  pro- 
hibition, supersedeas,  are  of  so  high  a  nature,  that,  like 
review,  they  seem  appropriate  to  the  jurisdiction  of  the  Com- 
missioner. The  same  observation  may,  perhaps,  apply  to 
some  processes  in  equity.  Even  as  to  all  these  matters, 
which  the  statute  leaves  undetermined,  the  safer  course 
appears  to  me  to  be  to  adhere,  so  far  as  may  be,  to  the  spirit 
of  the  law,  which  makes  the  Commissioner  the  appellate 
supervisor  of  the  judicial  acts  of  the  consuls. 

'  Sees.  4  and  5. 


12  I  EXTRATERRITORIAL  CASES. 

JUDICIAL  COMMITTEE  OF  THE  PRIVY  COUNCIL,  1863. 
[Reported,  2  Moore,  Privy  Council  Cases,  N.  S.,  161.] 

George  M.  Papayanni  et  al.,  Appellants,  v.  The  Russian 
Steam  Navigation  and  Trading  Co.,  Respondents. 

SYLLABUS. 
(By  the  Editor.) 

1.  EXTRATERRITORIALITY.     A    wide    difference    exists    between    the 

relations  of  a  Christian  with  an  Oriental  state  and  those  with 
another  Christian  state. 

2.  Id.     The  Oriental  state  has  no  ground  for  objecting  to  the  exer- 

cise within  its  territory  of  jurisdiction  by  one  Christian  power 
over  the  subjects  of  another. 

3.  Id.:   British  Regulations  for  such  exercise  in  Turkey  recited. 

4.  Id.:  British  Consular  Courts  in  Turkey  have  jurisdiction  over 

proceedings  in  rem. 

5.  Id.     Neither  party  having  proved  its  claim,  the  action  of  each  was 

dismissed  without  an  award  of  costs. 

This  was  an  appeal  from  two  judgments  in  an  action  and  cross- 
action,  being  a  claim  and  counter-claim,  respecting  damage  by  col- 
lision off  the  Island  of  Marmora,  whereby  the  steamer  Colchide  was 
lost,  pronounced  by  the  Judge  of  the  Supreme  Consular  Court  at 
Constantinople,  who  held  both  parties  equally  to  blame,  and  decreed 
both  parties  to  bear  a  moiety  of  the  damages  occasioned  by  the  loss. 

The  appellants  were  British  subjects  domiciled  in  England  and 
owners  of  the  Laconia.  The  respondents  were  Russian  subjects, 
"The  Russian  Steam  Navigation  and  Trading  Company,"  a  public 
Company,  incorporated  by  an  imperial  ukase  of  His  Majesty  the 
Emperor  of  Russia,  and  were  the  owners  of  the  steam  ship  Colchide. 
As  the  principal  question  in  the  appeal  tui'ned  upon  the  jurisdiction 
of  Her  Majesty's  Supreme  Consular  Court  at  Constantinople,  it  is 
necessary  to  state  briefly  the  history  of  the  British  Consular  juris- 
diction in  the  Levant. 

In  the  year  1606,  by  Letters  Patent  of  James  I,  the  corporation 
called  "The  Governor  and  Compa^iy  of  Merchants  of  England  trading 
to  the  Levant  Seas,"  was  constituted  and  endowed  with  certain  rights 
and  privileges.  These  were  confirmed  by  Letters  Patent  of  Charles 
II,  in  1662,  whereby  fui'ther  rights  and  privileges  were  granted  to 
the  Company,  including  a  power  to  appoint  Consuls  and  Vice- 
Consuls  in  all  the  places  in  the  dominions  of  the  Grand  Seignior, 
and  other  places  in  the  Levant  Seas;  such  Consuls  and  Vice-Consuls 
to  have  authority  to  govern  all  Merchants  being  subjects  of  His 
Majesty,  and  to  administer  to  them  full,  speedy,  and  upright  justice, 
in  all  their  plaints,  causes,  and  contentions,  among  them,  begun  and 
to  begin  in  the  said  dominions,  and  to  pacify  all  manner  of  discords 


PAPAYANNI  V.  RUSSIAN  ETC.  CO.,   1863.  13 

among  them,  for  the  better  government  of  the  Merchants.  The  By- 
Laws  of  the  Company,  revised,  from  time  to  time,  and  apparently 
for  the  last  time  in  the  year  1821,  directed  the  Consuls  and  Vice- 
Consuls  to  exercise  these  powers. 

The  rights  of  the  Company  and  the  trade  to  the  Levant  were 
further  regulated,  from  time  to  time,  by  various  statutes  passed  in 
the  reigns  of  George  II  and  George  III,  which  were  recited  and 
repealed  by  the  6th  Geo.  IV,  c.  33,  by  which  the  Company  in 
effect  was  dissolved,  and  their  property  transferred  to  the  Crown, 
and  their  jurisdiction  over  His  Majesty's  subjects  resorting  to  the 
ports  of  the  Levant  vested  in  Consular  officers,  appointed  by  His 
Majesty. 

The  capitulations  and  articles  for  peace  between  Great  Britain 
and  the  Ottoman  Empire,  as  agreed  upon,  augmented  and  altered 
at  different  periods,  were  finally  confirmed  by  the  Treaty  of  Peace 
concluded  at  the  Dardanelles  in  1809  in  which  the  Sultan  agreed 
as  follows: 

Art.  16.  That  if  there  happen  any  suit  or  other  difference,  or 
dispute,  among  the  English  themselves,  the  decision  thereof  shall 
be  left  to  their  ovni  Ambassador,  or  Consul,  according  to  their 
custom,  without  the  Judge,  or  other  Governors  our  slaves,  inter- 
meddling with  them. 

Art.  24.  That  if  any  Englishman,  or  other  subject  of  that  nation, 
shall  be  involved  in  any  law-suit,  or  other  affair  connected  with 
law,  the  Judge  shall  not  hear  nor  decide  thereon  until  the  Ambas- 
sador, Consul,  or  interpreter  shall  be  present;  and  all  suits  exceed- 
ing the  value  of  4,000  aspers  shall  be  heard  at  the  Sublime  Porte, 
and  nowhere  else."  ^ 

The  Statute,  6th  &  7th  Will.  IV,  c.  78,  was  passed  in  1836,  in 
consequence  of  the  recommendation  of  a  Parliamentary  Commission  ^ 
of  the  preceding  year.  The  first  section  recited  that  by  treaties 
and  capitulations  subsisting  between  His  Majesty  and  the  Sublime 
Ottoman  Porte,  full  jurisdiction  and  control  over  British  subjects 
within  the  Ottoman  dominions,  in  matters  in  which  such  British 
subjects  were  exclusively  concerned,  had  been  conferred  upon  the 
British  Ambassadors  and  Consuls  appointed  to  reside  within  the 
said  dominions;  and  enacted,  that  His  Majesty  might,  by  Order 
in  Council,  make  regulations  concerning  the  jurisdiction,  civil  as 
well  as  criminal,  over  His  Majesty's  subjects  resorting  to  the  ports 
within  the  Ottoman  dominions,  to  be  exercised  by  His  Majesty's 
Ambassador,  or  Consular  Officer,  and  might  establish  forms  of  pro- 
ceedings. The  2nd  section  recited  that  cases  occasionally  arose 
within  the  dominions  of  the  Ottoman  Porte,  wherein  the  interpo- 
sition of  His  Majesty's  Ambassador  or  Consular  Officer  was  required 
by  the  subjects  of  other  Christian  powers   in   the   determination   of 

*  The  text  of  the  entire  treaty  is  printed  in  Hertslet's  Treaties, 
&c.,  II,  346. 

^  See  Report  of  Sel.  Com.  on  Consular  Establishments,  22nd  August, 
1835,  pp.  175,  183-5. 


14  I  EXTRATERRITORIAL  CASES. 

differences  or  disputes  between  such  persons  and  British  subjects; 
and  enacted,  that  His  Majesty  might,  by  Order  in  Council,  make 
Regulations  for  the  guidance  of  His  Ambassadors,  or  Consular 
Officers,  in  such  cases,  such  Order  not  to  be  binding  until  six  months 
after  it  should  have  been  laid  before  both  Houses  of  Parliament. 
This  Act  was  subsequently  repealed  by  statute,"  the  first  section  of 
which  recites  that  by  treaty,  capitulation,  grant,  usage,  sufferance, 
and  other  lawful  means,  Her  Majesty  hath  power  and  jurisdiction 
within  divers  countries  and  places  out  of  Her  Majesty's  dominions, 
and  that  doubts  have  arisen  how  far  the  exercise  of  such  power  and 
jurisdiction  is  controlled  by,  and  dependent  on,  the  laws  and  customs 
of  this  realm;  and  enacts,  that  Her  Majesty  may  exercise  any  power 
or  jurisdiction  which  Her  Majesty  now  hath,  or  may  at  any  time 
hereafter  have,  within  any  country  or  place  out  of  Her  Majesty's 
dominions,  in  the  same  and  as  ample  a  manner  as  if  Her  Majesty 
had  acquired  such  power  or  jurisdiction  by  the  cession,  or  conquest, 
of  territory.  The  second  section  enacts  that  every  act  which  may 
at  any  time  be  done  in  pursuance  of  any  such  power  or  jurisdiction 
of  Her  Majesty  shall,  in  all  courts,  ecclesiastical  and  temporal,  and 
elsewhere  within  Her  Majesty's  dominions,  be  in  all  cases,  and  to 
all  intents  and  purposes  whatsoever,  as  valid  and  effectual  as  though 
the  same  had  been  done  according  to  the  local  law  then  in  force 
within  such  country  or  place.  The  third  section  authorizes  any 
court,  ecclesiastical  or  temporal,  in  Her  Majesty's  dominions,  to 
procure,  where  necessary,  evidence  of  any  such  power  or  jurisdiction, 
by  application  to  one  of  Her  Majesty's  principal  Secretaries  of  State. 
In  pursuance  of  this  Statute  various  Orders  in  Council  were  issued 
by  Her  Majesty.  By  that  of  October  2,  1843,  reciting  that  a  customary 
jurisdiction,  criminal  as  well  as  civil,  had  been  exercised  on  behalf 
cf  Her  Majesty  by  Her  Majesty's  Ambassadors  and  other  Con- 
sular Officers  in  the  Ottoman  dominions,  it  was  provided  that  such 
Officers  should,  until  further  order,  continue  to  exercise  the  same, 
and  should  observe  the  customary  forms  of  procedure.  In  transmit- 
ting the  above  to  Her  Majesty's  Consuls  in  the  Levant,  Her  Ma- 
jesty's Minister  for  Foreign  Affairs  sent  a  circular,  dated  October 
6,  1843,  whereof  the  following  was  an  extract: 

"The  effect  of  this  Order  is  to  relieve  you  from  the  serious  respon- 
sibility under  which  you  have  hitherto  acted,  with  regard  to  matters 
of  jurisdiction,  by  giving  to  your  proceedings  in  such  matters,  the 
sanction  and  authority  of  law,  which  in  many  instances  have  here- 
tofore been  wanting  to  them.  But  you  will  clearly  understand  that 
this  Order  goes  no  further.  You  must  not  exceed  the  limits,  which 
prudence,  or  convenience,  have  hitherto  prescribed  to  you.  un  i;  such 
time  as  Her  Majesty  shall  be  pleased,  by  a  further  Order,  to  give 
you  the  additional  authority,  which  circumstances  may  appear  to 
require  to  be  vested  in  you.  The  present  measure  is  designed  solely 
for  your  protection  against  the  consequences  of  acting  without  lawful 

'The  Foreign  Jurisdiction  Act,  6th  &  7th  Vict.,  c.  94   (1843). 


PAPAYANNI  V.  RUSSIAN  ETC.  CO.,   1863.  15 

authority;  the  subsequent  measures  will  require  to  be  seriously  con- 
sidered before  they  are  promulgated,  but  they  will  in  due  time  be 
communicated  to  you."  ■* 

By  an  Order  in  Council  of  June  19,  1864,  which  revoked  the 
criminal  jurisdiction  given  by  the  Order  ^  of  the  2nd  of  October, 
1843,  provision  was  made  for  the  exercise  of  criminal  jurisdiction 
3ver  British  subjects  in  respect  of  crimes  committed  within  the 
Ottoman  dominions.  This,  however,  was  revoked  by  a  subsequent 
Order  in  Council  of  August  27,  ISGO.  In  transmitting  the  Order  of 
June  19,  1844,  to  Her  Majesty's  Consular  servants  in  the  Ottoman 
dominions,  the  Earl  of  Aberdeen,  Her  Majesty's  Minister  for  Foreign 
affairs,  sent  therewith  a  Circular,  dated  the  2nd  of  July,  1844,  whereof 
the  following  was  an  extract: 

"The  right  of  British  Consular  officers  to  exercise  any  jurisdiction 
in  Turkey  in  matters  which,  in  other  countries  come  exclusively  under 
the  control  of  the  local  magistracy,  depends  originally  on  the  extent 
to  which  that  right  has  been  conceded  by  the  Sultans  of  Turkey  to 
the  British  Crown,  and,  therefore,  the  right  is  strictly  limited  to 
the  terms   in  which  the  concession   is  made. 

The -right  depends,  in  the  next  place,  on  the  extent  to  which  the 
Queen,  in  exercise  of  the  powers  vested  in  Her  Majesty  by  Act  of 
Parliament,  may  be  pleased  to  grant  to  any  of  Her  Consular  servants 
authority  to  exercise  jurisdiction  over  British  subjects,  and,  therefore, 
the  Orders  in  Council  which  may,  from  time  to  time,  be  issued,  are 
the  only  warrants  for  the  proceedings  of  the  Consuls,  and  exhibit 
the  rules  to  which  they  must  scrupulously  adhere. 

This  state  of  things  in  Turkey  is  an  exception  to  the  system  univer- 
sally employed  among  Christian  nations.  But  the  Ottoman  Emperors 
having  waived,  in  favour  of  Christian  powers,  rights  inherent  in 
territorial  sovereignty,  such  Christian  powers,  in  taking  advantage 
of  this  concession,  are  bound  to  provide  as  far  as  possible  against 
any  injurious  effects  resulting  from  it  to  the  territorial  Sovereign; 
and  as  the  maintenance  of  order,  and  the  repression  and  punish- 
ment of  crime,  are  objects  of  the  greatest  importance  in  every 
civilized  community,  it  is  obligatory  upon  the  Christian  powers,  stand- 
ing as  they  do  in  Turkey,  in  so  far  as  their  own  subjects  are  con- 
cerned, in  the  place  of  the  territorial  Sovereign,  to  provide  as  far 
as  possible  for  these  great  ends. 

The  present  Order  in  Council  has  been  issued  for  this  purpose. 
But  it  is  essential  that  Her  Majesty's  Consular  Officers  in  Turkey 
should  bear  in  mind  that,  in  conferring  upon  theai  powers  of  juris- 
diction of  such  a  comprehensive  and  unusual  character.  Her  Majesty's 
Government  do  not  desire  that  those  powers  should  be  needlessly 
or  lightly  employed;  and  that,  on  the  contrary,  whenever  differences 
can  be  adjusted  in  a  conciliatory  manner,  such  a  termination  should 
be  promoted  and  recommended;  and  that  whenever  crimes  are  to 
be  punished,  -certain  and  speedy,  rather  than  severe,  punishment  is 
to  be  preferred." 

By  an  Order  in  Council  of  the  27th  of  August,  1857,  reciting 
that  it  was  expedient  still  further  to  provide  for  the  more  efficient 
exercise  of  the  power  and  jurisdiction  customarily  and  as  of  right 
exercised  on  behalf  of  Her  Majesty,  by  Her  Majesty's  Ambassadors 

*  This  circular  is  to  be  found  in  State  Papers,  XXXVI,  853. 
'  Printed  in  Hertslet's  Treaties,  VI,  843. 


16  I  EXTRATERRITORIAL  CASES. 

and  other  officers  within  the  Ottoman  dominions,  provision  was  made 
in  the  1st  article  for  the  appointment  of  an  Officer  who,  in  judicial 
matters,  should  represent  the  Consul-General  at  Constantinople,  and 
be  called  the  "Judge  of  the  Supreme  Consular  Court  of  Constanti- 
nople," and  the  same  jurisdiction  was  vested  in  him  which  the  Con- 
sul-General had  previously  exercised.  The  10th  article  authorized 
the  Judge  to  establish  rules  of  practice,  such  rules  to  be,  as  far  as 
possible,  in  conformity  with  those  established  in  the  County  Courts 
of  England,  regard  being  had  to  the  difference  of  local  circum^stances 
and  long-established  custom.  The  16th  article  gave  an  appeal  from 
the  decision  of  any  Consul  in  a  suit  of  civil  nature  to  the  Judge. 
The  21st  article  gave  an  appeal  from  the  decision  of  the  Judge 
in  any  civil  suit  to  the  Judicial  Committee  of  Her  Majesty's  Privy 
Council.  The  23rd  article  authoi'ized  the  Judge,  or  the  Consul 
of  the  district,  to  hear  civil  suits  in  which  British  subjects  were 
plaintiffs  and  the  defendants  were  Ottoman  subjects  or  the  subjects  of 
other  powers  in  amity  with  Her  Majesty. 

The  whole  of  this  Order,  and  the  other  Orders  hereinbefore 
mentioned,  were  revoked  by  an  Order  in  Council  of  the  27th 
of  August,  1860,  which  Order  was  the  one  in  operation  at  the  time 
when  the  judgments  appealed  from  in  this  case  were  pronounced. 
This  Order  recited,  among  other  matters,  that  Her  Majesty  has  had, 
and  now  has,  power  and  jurisdiction  in  the  Ottoman  dominions,  and 
that  it  is  expedient  to  revise  and  consolidate  the  provisions  of  the 
former  Orders,  and  to  make  further  provision  for  the  due  exercise  of 
Her  Majesty's  power  and  jurisdiction  aforesaid,  and  for  the  more  reg- 
ular and  efficient  administration  of  justice,  and  the  better  maintenance 
of  order  among  all  classes  of  Her  Majesty's  subjects  and  of  persons 
enjoying  Her  Majesty's  protection  resident  in  or  resorting  to  the 
dominions  of  the  Sublime  Ottoman  Porte.  The  4th  article  directs 
that  Her  Majesty's  jurisdiction,  exercisable  in  the  dominions  of  the 
Sublime  Ottoman  Porte,  shall  be  exercised  according  to  the  provisions 
of  the  Order,  and  not  otherwise.  The  5th  article  orders  that,  subject 
to  the  other  provisions  of  the  present  Order,  the  civil  and  criminal 
jurisdiction  shall,  as  far  as  circumstances  admit,  be  exercised  upon 
the  principles  of  the  common  law,  the  rules  of  equity,  the  statute 
law,  and  other  law  for  the  time  being  in  force  in  England,  and  with 
all  the  powers  vested  in  and  pursuant  to  the  course  of  procedure 
and  practice  observed  by  and  before  Courts  of  Justice,  and  Justices 
of  the  Peace  in  England,  according  to  their  respective  jurisdictions 
and  authorities.  The  13th  article  orders  that  Her  Majesty's  juris- 
diction, civil  and  criminal,  exercisable  in  the  dominions  of  the  Sublime 
Ottoman  Porte,  shall,  for  and  within  the  district  of  the  Consulate 
General  of  Constantinople,  be  vested  exclusively  in  the  Supreme  Con- 
sular Court  as  its  ordinary  original  jurisdiction.  The  26th  article 
orders  that  the  Supreme  and  every  other  Consular  Court  shall  be 
a  Court  of  law  and  equity,  and  (subject  to  the  other  provisions 
of  the  Order)    shall  have,  and  may  exercise,  all  jurisdiction,  power 


PAPAYANNI  V.  RUSSIAN  ETC.  CO.,   18  63.  17 

and  authority,  legal,  equitable  or  other,  which  any  Consul  of  Her 
Majesty  by  custom  has  or  may  exercise  in  the  dominions  of  the 
Sublime  Ottoman  Porte.  By  articles  27  to  30,  special  jurisdiction  i^ 
given  to  the  Court  in  bankruptcy,  matrimonial  causes,  and  probate. 
The  64th  article  orders  that  the  Supreme  and  other  Consular  Courts, 
according  to  their  respective  jurisdiction,  and  in  conformity  with  the 
rules  relating  to  suits  between  British  subjects,  may  determine  any 
suit  of  a  civil  nature,  instituted  by  a  subject  of  any  state  in  amity  with 
Her  Majesty  against  a  British  subject,  provided  the  plaintiflf  comply 
with  certain  conditions.  The  66th  article  orders  that  the  Judge  of 
the  Supreme  Consular  Court  may  frame  rules  to  regulate  procedure 
and  practice,  such  rules  to  be  approved  by  one  of  Her  Majesty's 
principal  Secretaries  of  State.  The  69th  article  makes  provision  for 
appeals  from  the  Supreme  Consular  Court  to  Her  Majesty  in  Council. 

In  pursuance  of  this  Order,  certain  Rules,  dated  November  30, 
1860,  were  framed  by  the  then  Judge  of  Her  Majesty's  Supreme  Con- 
sular Court.  No  provision  whatever  was  made  in  these  rules,  or  in 
the  forms  or  tables  of  fees  annexed  to  them,  for  exercising  admiralty 
jurisdiction,  nor  for  proceedings  in  rem,  although  the  date  of  these 
rules  is  subsequent  to  the  rules  of  the  High  Court  of  Admiralty  of 
the  29th  November,  1859,  and  now  in  force  in  that  Court. 

Since  the  judgments  appealed  from  were  pronounced,  the  Order 
in  Council  of  the  27th  of  August,  1860,  had  been  repealed  and  new 
regulations  established  by  an  Order  in  Council  of  the  9th  of  January, 
1863,  by  the  36th  article  of  which  the  Supreme  Consular  Court  of 
Constantinople  is,  in  express  terms,  constituted  a  Vice-Admiralty 
Court,  with  Vice-Admiralty  jurisdiction. 

On  the  19th  of  April,  1862,  proceedings  were  commenced  by  the 
respondents,  who  filed  in  Her  Majesty's  Supreme  Consular  Court  at 
Constantinople,  a  decree  of  the  Russian  Chancellerie  authorizing  them 
to  submit  to  the  jurisdiction  of  Her  Majesty's  Consular  Court,  against 
the  steamship  Laconia,  the  property  of  the  appellants,  praying  that 
the  Court  would  pronounce  against  that  ship  for  £43,000,  the  damage 
sued  for  in  the  cause,  by  reason  of  the  collision  which  took  place 
off  the  Island  of  Marmora,  and  for  the  costs  of  the  suit  to  be  paid 
to  the  owners  of  the  steamer  Colchide;  and  for  further  relief.  The 
appellants  entered  a  protest  against  the  jurisdiction  of  the  Supreme 
Consular  Court  to  entertain  the  cause  of  collision,  it  being  a  proceed- 
ing in  rem.  After  hearing  Counsel  on  the  protest,  the  learned  Judge, 
Sir  Edward  Hornby,  on  the  22nd  of  May,  1862,  gave  judgment  as 
follows : 

"The  Court  affirms  its  jurisdiction,  not  on  the  ground  that  it  is 
a  Court  of  Admiralty,  or  that  it  has  jurisdiction  in  all  cases  taken 
cognizance  of  by  Courts  of  Admiralty,  but  simply  on  the  ground 
that  it  has  jurisdiction  in  cases  of  collision  within  Turkish  waters, 
and  that  it  can  exercise  that  jurisdiction  in  rem  as  well  as  in  personam. 
The  Court  further  observes,  that  although  it  is  true  no  mention  of  a 
jurisdiction  in  actions  in  rem  is  specially  made  in  the  Order  of  Council 

14008   O.    W. 2 


18  I  EXTRATERRITORIAL  CASES. 

of  the  27th  Aug-ust,  1860,  yet,  under  the  26th  section  of  that  Order, 
»'all  jurisdiction,  power  and  authority,  legal,  equitable,  or  other, 
which  any  Consul  of  Her  Majesty,  by  custom,  has  or  may  exercise 
in  the  dominions  of  the  Sublime  Ottoman  Porte,'  is  specially  re- 
served to  Consular  Courts,  and  there  is  no  doubt  that  Consuls  in 
the  Levant  have  customarily  exercised,  and  still  continue  to  exercise, 
jurisdiction  over  ships  in  the  sense  of  ordering  their  detention  and 
sale.  In  actions  on  bottomry  bonds,  vessels  are  constantly  stopped, 
sequestered,  and  sold.  Claims  are  marshalled  and  satisfied  by  sale 
of  the  res  and  indeed  the  rules  of  the  Maritime  law  in  the  ap- 
portionment of  damages,  in  cases  of  collision,  have  been  followed. 
The  Court  calls  also  attention  to  the  4th,  5th,  and  13th  sections 
of  the  Order  in  Council.  It  is  not  to  be  doubted  but  that  Her 
Majesty  has  in  the  Levant  jurisdiction  in  rem  as  well  as  in  personam, 
in  other  words,  that  she  has  a  jurisdiction  in  Admiralty  in  the  same 
way  as  she  Vias  a  Common  Law  and  Equity  jurisdiction,  for  such 
jurisdiction  would  naturally  follow  any  cession,  or  conquest,  of  terri- 
tory. 

By  the  4th  section,  all  the  jurisdiction,  whatever  it  may  be,  is  to 
be  exercised  under,  and  according  to  the  provisions  of,  the  Order  in 
Council.  By  the  oth  section,  'such  jurisdiction  is  to  be  exercised,  so 
far  as  circumstances  will  admit,  in  conformity  with  the  Common  law, 
the  rules  of  Equity,  the  Statute  law,  and  other  law  for  the  time  being 
enfoi  ced  in  En^J:land.'  This  section,  therefore,  contemplated  the  exer- 
cise of  jurisdiction  in  conformity  with  some  other  law  than  the  Common 
or  Statute  law  and  it  is  fair  to  presume  that  by  this  term,  'other  law,' 
was  meant,  if  occasion  should  arise  for  its  application,  the  Maritime 
law,  and  when  reference  is  made  to  the  reservation  contained  in  the 
26th  clause,  it  is  clear  that  Her  Majesty  intended  to  delegate  to  Con- 
sular Courts,  established  under  the  Order  in  question,  the  power  to 
exercise  all  her  jurisdiction  in  the  Levant,  other  than  the  Common  law, 
rules  of  Equity,  and  Statute  law  which  the  Consuls  had,  by  custom, 
exercised  in  the  dominions  of  the  Sublime  Ottoman  Porte. 

The  Court  also  draws  attention  to  the  fact  that  practically,  as 
between  the  different  foreign  Consular  Courts  in  the  Levant,  much 
proceeds  from  and  depends  on  a  principle  of  reciprocity.  To  a  great 
extent  custom  has  created  a  certain  uniformity  and  consensus  of  action 
with  reference  to  the  exercise  of  different  jurisdictions  possessed  by 
the  different  Consulates  and  for  the  Supreme  Court  to  declare  now, 
that  it  will  no  longer  recognize  a  custom  so  long  observed,  generally 
known  and  acted  on,  of  stopping  ships,  to  answer  claims  upon  them, 
would  be  productive  not  only  of  great  inconvenience  but  of  great 
injustice  as  in  a  great  many  cases  individuals  who  had  suffered 
grievous  wrong  and  injury  would  be  practically  without  remedy.  To 
take  the  present  case  as  an  instance,  the  result  of  leaving  the  remedy 
which  the  plaintiffs  in  this  action  claim  to  have  for  the  undoubted 
loss  they  have  sustained,  to  be  enforced  against  the  Captain  of  the 
Laconia,  would  be  practically,  in  all  probability,  to  deprive  them  alto- 
gether of  the  compensation  to  which,  if  they  are  justified  in  the  claim 
they  make,  they  would  be  entitled,  because  it  is  absurd  to  suppose  that 
the  Captain  is  worth  £40,000.  The  owners  are  not  within  the  jurisdic- 
tion of  this  Court  and,  in  all  probability,  it  would  be  impossible  to 
carry  on  this  action  with  any  chance  of  success  in  England,  in  con- 
sequence of  the  difficulties  attending  the  utter  absence  of  jurisdiction 
over  witnesses  in  this  country,  from  the  variety  of  independent  nation- 
alities and,  so  far  as  the  ship  itself  is  concerned,  she  might  be  sold 
here,  or  otherwise  disposed  of,  and  never  be  placed  within  the  jurisdic- 
tion of  the  English  Court  of  Admiraltv." 


PAPAYANNI  V.  RUSSIAN  ETC.  CO.,   1863.  19 

The  learned  Judge  gave  special  leave  to  appeal  to  the  Queen  in 
Council  from  this  judgment  but  refused  to  stay  the  proceedings 
pending  the  appeal.  The  owners  of  the  Laconia  thereupon  put  in 
their  answer  imputing  the  whole  blame  of  the  collision  to  the  Captain 
and  crew  of  the  Colchide  and  they  afterwards  commenced  a  cross- 
action  against  the  Colchide.     [Here  follows  a  review  of  the  evidence.] 

On  November  5,  1862,  the  same  learned  Judge  delivered  judgment 
on  the  merits  in  both  actions  pronouncing  that  both  parties  were  in 
fault,  that  the  damage  done  in  each  ship  should  be  added  together, 
that  each  party  should  bear  a  moiety  of  the  total  amount,  and  that 
neither  party  should  pay  or  receive  costs.  From  this  decision,  and 
from  the  judgment  affirming  the  jurisdiction  of  the  Consular  Court, 
the  present  appeals  were  brought. 

Mr.  Brett,  Q.  C,  and  Mr.  V.  Lushington,  for  the  Appellants: 

At  the  time  of  the  institution  of  these  actions,  Her  Majesty's  Su- 
preme Consular  Court  at  Constantinople  had  no  jurisdiction  to  enter- 
tain the  suits,  as  the  cause  of  action  arose  between  Russian  and  British 
subjects  beyond  the  local  limits  of  the  authority  of  the  British  Consul. 
The  jurisdiction  claimed  was  founded  on  that  formerly  possessed 
by  the  Consuls  in  the  Levant  and  cannot  be  extended  beyond  the 
jurisdiction  conceded  by  treaty.  Now  the  treaties  between  Turkey 
and  Great  Britain,  and  certainly  the  treaty  of  the  Dardanelles  of 
1809,  fall  far  short  of  conceding  such  a  right  as  that  of  deciding 
between  two  foreign  parties.  It  may  be  true,  that  if  any  statute 
had  gone  the  length  of  enjoining  the  Consul  to  entertain  such  a 
suit  as  this,  he  was  bound  to  hear  it,  but  we  submit  that  no  statute, 
or  Order  in  Council,  could  enlarge  the  jurisdiction,  which  is  simply 
that  which  the  Sultan  has  ceded  by  treaty  to  Her  Majesty.  Again, 
assuming  that  both  the  Turkish  and  British  Governments  had  con- 
ceded the  jurisdiction  in  question,  it  could  not  be  enforced  against 
a  Russian  subject.  The  authority  in  this  case  of  the  Russian 
Chancellerie  could  not  have  had  effect,  for  consent  to  a  subject  to 
sue  does  not  give  jurisdiction.  It  must  be  conceded  that  a  Russian 
at  Constantinople  could  not  be  forced  into  the  Consular  Court. 
Neither  has  the  Consul  means  of  enforcing  a  judgment  pronounced 
against  a  Russian  subject;  that  being  so,  the  rule  of  reciprocity 
applies,  for  if  an  English  subject  cannot  enforce  a  judgment  against 
a  Russian  subject,  neither  can  a  Russian  subject  enforce  a  judg- 
ment against  an  English  subject.  The  Turkish  Government  has 
never  by  treaty,  or  custom,  assented  to  such  a  jurisdiction  being 
exercised.  The  Treaty  of  the  Dardanelles  expressly  mentions 
"Englishmen,  or  other  subjects  of  Great  Britain,"  and  gives  no 
jurisdiction  to  the  Consul  between  English  subjects  and  the  subjects 
of  other  Foreign  powers.  Neither  has  the  British  Government 
assented  to  such  a  jurisdiction,  for  it  can  have  no  power  to  impose 
a  jurisdiction  upon  Russian  subjects,  or  to  legislate  by  Order  in 
Council,  so  as  to  regulate  in  Constantinople  disputes  where  foreigners 


20  I  EXTRATERRITORIAL  CASES. 

not  owing  Her  Majesty  allegiance  are  concerned.  The  Statute,  6th 
&  7th  Will.  IV.,  c.  78,  was  desired,  as  the  preamble  shows,  to 
protect  Consuls  in  the  exercise  of  their  powers  against  action  on 
account  of  their  decisions.  It  is  true  the  2nd  section  speaks  of  a 
jurisdiction  occasionally  exercised  between  British  subjects  and  sub- 
jects of  other  Powers  but  the  jurisdiction  it  speaks  of  is  only  per- 
missive and  that  statute  does  not,  and  cannot  give  a  jurisdiction, 
which  would  include  power  to  compel  obedience  to  the  Orders  of  the 
Consular  Court.  No  statute  could  give  such  a  jurisdiction  as  would 
justify  Consular  Courts  giving  judgment  by  default.  The  statute, 
6th  &  7th  Vict.,  c.  94,  only  gave  Her  Majesty  power  to  establish  a 
jurisdiction  over  British  subjects.  The  Orders  in  Council  made 
pursuant  to  this  latter  statute  must  be  confined  within  those  limits. 
If  they  go  beyond,  they  are  ultra  vires,  and  void. 

(2)  This  was  not  a  proceeding  in  rem,  as  the  Consular  Court 
had  no  Admiralty,  or  Vice-Admiralty  jurisdiction '  and  no  authority 
to  proceed  i«  rem.  The  rules  made  by  the  Consular  Court  pursuant 
to  the  Order  in  Council  of  the  27th  of  August,  1860,  do  not  provide 
for  regular  proceedings  in  rem,  which,  are  proceedings  for  en- 
forcing a  maritime  lien  against  the  offending  res,^  and  not  to  be 
considered  as  a  mere  process  of  seizing  a  defendant's  property  by 
way  of  security  to  answer  judgment;  as  seen  by  rules  110  and  111. 
As  to  the  customary  jurisdiction  in  rem  in  cases  of  bottomry  stated 
in  the  judgment*  to  have  been  exercised  in  the  Levant  by  the 
Consuls  of  Her  Majesty  and  the  Consuls  of  other  European  Sover- 
eigns or  Powers,  we  submit,  that  such  jurisdiction,  if  any  ever 
was  in  fact  exercised  by  the  Consular  officer  of  Her  Majesty,  or  of 
any  other  European  Sovereign,  was  arbitrary,  and  merely  occasional, 
and,  was  not,  in  any  legal  sense  of  the  term,  a  jurisdiction,  so  as 
to  bind  the  parties  unless  submitting  thereto.'  It  is  true  that  by 
the  36th  article  of  Order  in  Council  of  the  9th  January,  1863,  the 
Supreme  Consular  Court  is  in  express  terms  constituted  a  Vice-Ad- 
miralty Court  with  Vice-Admiralty  jurisdiction;  but  this  Order  in 
Council  was  not  in  force  at  the  time  the  judgment  appealed  from 
was  given  and  affords  an  indirect  proof  that  at  that  period  no  such 
Vice-Admiralty  jurisdiction  was  recognized. 

(3)  Assuming  that  the  Consular  Court  had  jurisdiction  to  enter- 
tain and  proceed  with  the  suits,  the  Court  had  no  power  to  proceed 
to  administer  the  law  of  the  English  Court  of  Admiralty  but  was 
limited  and  confined  to  the  municipal  law  of  Great  Britain  applicable 
to  such  a  case.     The  collision  took  place  off  the  island  of  Marmora, 

'4th  Coke's  Inst.,  tit.  "The  Court  of  Admiralty,"  p.  134;  Bacon's 
Abr.,  tit.  "Court  of  Admiralty,  B.;"  Story's  Comm.  on  the  Conflict  of 
Laws,  sec.  592;  De  Lovio  v.  Boit,  2  Gallison   (U.  S.),  398. 

'  "The  Bold  Buccleugh"  7  Moore's  P.  C.  Cases,  267. 

'  Ante,  p.  18. 

'"The   Griefsward,"    Swab.   Adm.    Rep.,    430. 


PAPAYANNI  V.  RUSSIAN  ETC.  CO.,   1868.  21 

and  not  on  the  high  seas,  which  alone  gives  a  Court  of  Admiralty 
jurisdiction."  Therefore,  the  finding  of  the  Court  upon  the  facts 
that  the  plaintiff  had  been  guilty  of  negligence  contributing  to  the 
accident,  entitled  the  defendant  to  judgment  in  acordance  with  the 
municipal  law  of  England,  and  with  the  law  applied  in  all  European 
Courts  of  Admiralty,  the  British  Courts  of  Admiralty  alone  excepted." 
Mr.  C.  P.  Butt  and  Mr.  Pritchard  for  respondents. 

Jurisdiction  was  established  by  the  mutual  consent  of  the  Govern- 
ments of  Great  Britain  and  the  Ottoman  Porte.  In  all  the  treaties 
made  between  Turkey  and  Great  Britain,  the  Consular  jurisdiction 
is  conceded.  It  is  true,  that  the  Sultan  has  not  by  treaty  given 
any  right  to  British  Consuls  over  foreign  subjects;  but  where  he 
has  permitted  such  right  occasionally  to  be  exercised  in  his  terri- 
tories, he  has  by  custom  so  far  parted  with  his  own  Sovereign  right 
as  to  permit  the  exercise  of  such  a  jurisdiction.  In  a  similar  manner 
the  Czar,  tho  not  by  treaty,  has  conceded  a  jurisdiction  to  British 
authorities  and,  by  acquiescence  and  custom,  his  subjects  are  author- 
ized to  resort  to  the  jurisdiction  of  the  Consular  Court  at  Constan- 
tinople. Here  the  Russian  Chancellerie  expressly  sanctioned  the 
submission  to  the  jurisdiction  of  the  British  Consular  Court. 

(2)  The  judgment  of  the  Court  below  shows  that  there  is  an 
undoubted  remedy  in  rem  in  cases  of  bottomry  bonds  given  by  the 
Consular  Court;  and  if  so,  surely  it  is  competent  to  proceed  in  rem 
in  cases  of  collision.  The  Order  in  Council  of  the  27th  of  August, 
1860,  art.  26,  gives  to  the  Consul  full  jurisdiction. 

(3)  The  judgment  of  the  Court  directing  a  division  of  the  damages 
was  proper.  It  had  no  power  to  adopt  the  principles  of  the  Common 
Law." 

Their  Lordships'  judgment  was  pronounced  by  Dr. 
LUSHINGTON  : 

In  considering  what  power  and  what  jurisdiction  was 
conceded  to  Great  Britain  within  certain  portions  of  the 
Turkish  dominions,  it  must  always  be  borne  in  mind  that 
in  almost  all  transactions,  whether  political  or  mercantile, 
a  wide  difference  subsists  in  the  dealings  between  an 
Oriental  and  a  Christian  State  and  the  intercourse  between 
two  Christian  nations.  This  is  an  undoubted  fact.  Many 
of  the  reasons  are  obvious  but  this  is  not  the  occasion  for 
discussing  them.  It  is  sufficient  for  us  to  know  and  ac- 
knowledge that  such  is  the  fact, 

"Statute,  24th  Vict,  c.   10. 

"Hay  V.  Le  Neve,  2  Shaw's  Sco.  H.  L.  App.,  395;  De  Vaux  v.  Sal- 
vador, 4  Ad.  &  Ell.,  420. 

•^  Cases  cited  in  note  11  and  The  Seringapatam,  3  W.  Rob.  38; 
Kent's   Comm.   III.,   29. 


22  I  EXTRATERRITORIAL  CASES. 

It  is  true  beyond  all  doubt  that,  as  a  matter  of  right,  no 
State  can  claim  jurisdiction  of  any  kind  within  the  ter- 
ritorial limits  of  another  independent  State.  It  is  also  true 
that  between  two  Christian  States  all  claims  for  jurisdic- 
tion of  any  kind,  or  exemption  from  jurisdiction,  must  be 
founded  on  treaty,  or  engagements  of  similar  validity.  Such, 
indeed,  were  factory  establishments  for  the  benefit  of  trade. 

But  though,  according  to  the  laws  and  usages  of  European 
nations,  a  cession  of  jurisdiction  to  the  subjects  of  one 
State  within  the  the  territory  of  another,  would  require,  gen- 
erally at  least,  the  sanction  of  a  treaty,  it  may  by  no  means 
follow  that  the  same  strict  forms,  the  same  precision  of 
treaty  obligation,  would  be  required  or  found  in  inter- 
course with  the  Ottoman  Porte. 

It  is  true,  as  we  have  said,  that  if  you  inquire  as  to  the 
existence  of  any  particular  privileges  conceded  to  one  State 
in  the  dominions  of  another,  you  would,  amongst  European 
nations,  look  to  the  subsisting  treaties;  but  this  mode  of 
incurring  obligations,  or  of  investigating  what  has  been 
conceded,  is  matter  of  custom  and  not  of  natural  justice. 
Any  mode  of  proof  by  which  it  is  shown  that  a  privilege 
is  conceded  is,  according  to  the  principles  of  natural  justice, 
sufficient  for  the  purpose.  The  formality  of  a  treaty  is  the 
best  proof  of  the  consent  and  acquiescence  of  parties,  but 
it  is  not  the  only  proof,  nor  does  it  exclude  other  proof; 
and  more  especially  in  transactions  with  Oriental  States. 
Consent  may  be  expressed  in  various  ways;  by  constant 
usage  permitted  and  acquiesced  in  by  the  authorities  of  the 
State,  active  assent,  or  silent  acquiescence,  where  there  must 
be  full  knowledge. 

We,  having  considered  the  materials  before  us,  entertain 
no  doubt  that,  so  far  as  relates  to  the  Ottoman  Government, 
no  objection  is  tenable  against  the  exercise  of  jurisdiction 
between  British  and  Russian  subjects.  Indeed,  the  objec- 
tion, if  any  such  could  properly  be  urged,  should  come  from 
the  Ottoman  Government  rather  than  a  British  suitor,  who, 
in  this  case,  is  bound  by  the  law  established  by  his  own 
country.  The  case  may,  in  some  degree,  be  assimilated  to 
the  violation  of  neutral  territory  by  a  belligerent;  the  neu- 
tral State  alone  can  complain. 


PAPAYANNI  V.  RUSSIAN  ETC.  CO.,   1863.  23 

We  think,  looking  at  the  whole  of  this  case,  that  so  far 
as  the  Ottoman  Government  is  concerned,  it  is  sufficiently 
shown  that  they  have  acquiesced  in  allowing  to  the  British 
Government  a  jurisdiction,  whatsoever  be  its  peculiar  kind, 
between  British  subjects  and  the  subjects  of  other  Chris- 
tian States.  It  appears  to  us  that  the  course  was  this :  that 
at  first,  from  the  total  difference  of  religious  habits  and 
feelings,  it  was  necessary  to  withdraw  as  far  as  practicable 
British  subjects  from  the  native  courts;  then,  in  the  prog- 
ress of  time,  commerce  increasing,  and  various  nations 
having  the  same  interest  in  abstaining  from  resort  to  the 
tribunals  of  Mussulmans,  &c.,  recourse  was  had  to  Consular 
Courts,  and  by  degrees  the  system  became  general.  Of  all 
this  the  Government  of  the  Ottoman  Porte  must  have  been 
cognizant,  and  their  long  acquiescence  proves  consent. 

The  principles  are  fully  explained  in  the  celebrated  judg- 
ment of  Lord  Stowell  ^^  to  which  we  have  very  recently 
referred.^* 

Though  the  Ottoman  Porte  could  give  and  has  given  to 
the  Christian  Powers  of  Europe  authority  to  administer 
justice  to  their  own  subjects  according  to  their  own  laws,  it 
neither  has  professed  to  give  nor  could  give  to  one  such 
power  any  jurisdiction  over  the  subjects  of  another  power. 
But  it  has  left  those  powers  at  liberty  to  deal  with  each 
other  as  they  may  think  fit,  and  if  the  subjects  of  one  coun- 
try desire  to  resort  to  the  tribunals  of  another,  there  can  be 
no  objection  to  their  doing  so  with  the  consent  of  their  own 
Sovereign  and  that  of  the  Sovereign  to  whose  tribunals  they 
resort.  There  is  no  compulsory  power  in  an  English  Court 
in  Turkey  over  any  but  English  subjects;  but  a  Russian 
or  any  other  foreigner  may,  if  he  pleases,  voluntarily  resort 
to  it  with  the  consent  of  his  Sovereign  and  thereby  submit 
himself  to  its  jurisdiction. 

This  case  is  provided  for  by  the  Statute,  6th  &  7th  Vict., 
c.  94.     The  1st  section  of  that  Act  recites  that, 

"  "The  Indian  Chief,"  3  Rob.  Adm.  Rep.,  29. 

"  See  The  Advocate-General  of  Bengal  v.  Ranee  Surnomoye  Dossee, 
2  Moore,  P.  C.  Cas.  N.  S.,  60. 


24  I  EXTRATERRITORIAL  CASES. 

"By  treaty,  capitulation,  grant,  usage,  sufferance,  and  other  lawful 
means,  Her  Majesty  hath  power  and  jurisdiction  within  divers  countries 
and  places  out  of  Her  Majesty's  dominions;  and  that  doubts  have 
arisen  how  far  the  exercise  of  such  power  and  jurisdiction  is  controlled 
by  and  dependent  upon  the  laws  of  this  realm";  and  enacts  that  "Her 
Majesty  may  exercise  any  power  or  jurisdiction  which  Her  Majesty 
now  hath,  or  may  at  any  time  hereafter  have,  within  any  country  out 
of  Her  Majesty's  dominions,  in  the  same  and  as  ample  a  manner  as  if 
Her  Majesty  had  acquired  such  power  or  jurisdiction  by  the  cession 
or  conquest  of  territory." 

The  effect  of  this  section  is  that  the  jurisdiction  of  the 
British  Consul  in  the  Ottoman  Empire  became,  within  the 
limits  within  which  it  existed  by  usage  or  sufferance,  liable 
to  be  regulated  by  Order  in  Council.  Now  the  Order  in 
Council,  dated  the  27th  of  August,  1860,  recites,  among 
other  matters,  that 

"Her  Majesty  has  had  and  now  has  power  and  jurisdiction  in  the 
Ottoman  dominions,  and  that  it  is  expedient  to  revise  and  consolidate 
the  provisions  of  the  former  Ord«rs  and  to  make  further  provi- 
sion for  the  due  exercise  of  Her  Majesty's  power  and  jurisdiction 
aforesaid  and  for  the  more  regular  and  efficient  administration  of 
justice  and  the  better  maintenance  of  order  among  all  classes  of  Her 
Majesty's  subjects  and  of  persons  enjoying  Her  Majesty's  protection, 
resident  in  or  resorting  to  the  dominions  of  the  Sublime  Ottoman 
Porte     *     *     *. 

"The  Supreme  or  other  Consular  Court,  according  to  its  respective 
jurisdiction,  original  or  appellate  (as  the  case  may  require),  and  in 
conformity  with  the  rules  relating  to  suits  between  British  subjects 
and  appeals  therein,  may  hear  and  determine  any  suit,  proceeding,  or 
question  of  a  civil  nature  instituted,  taken,  or  raised  by  a  British 
subject  against  a  subject  of  the  Sublime  Ottoman  Porte,  or  a  subject 
or  citizen  of  any  other  State  in  amity  with  Her  Majesty  or  by  a  subject 
of  the  Sublime  Ottoman  Porte,  or  a  subject  or  citizen  of  any  other 
state  in  amity  with  Her  Majesty  against  a  British  subject:  Provided 
that  the  subject  of  the  Sublime  Ottoman  Porte,  or  the  subject  or  citizen 
of  such  other  State  as  aforesaid,  obtains  and  files  in  such  Court  the 
consent  in  writing  of  the  competent  local  authority  on  behalf  of  the 
Sublime  Ottoman  Porte,  or  of  the  Consul  of  such  other  State  (as  the 
case  may  be),  to  his  submitting,  and  does  submit,  to  the  jurisdiction 
of  the  Supreme  or  other  Consular  Court,  and,  if  required,  gives 
security  to  the  satisfaction  of  the  Court,  by  deposit  or  otherwise,  to 
pay  fees,  damages,  costs,  and  expenses,  and  abide  by  and  perform  any 
such  decision  as  may  be  given  by  the  Supreme  or  other  Consular  Court 
originally  or  on  appeal    (as  the  case  may  require)."" 

"Sec.  64. 


PAPAYANNI  V.  RUSSIAN  ETC.  CO.,   1863.  25 

The  plaintiff  in  this  case  has  complied  with  these  con- 
ditions, and  has  thereby  submitted  himself  in  this  suit  to 
the  jurisdiction  of  this  Consular  Court.  The  Court  has  no 
jurisdiction  over  him  except  by  his  consent.  It  could  not 
have  entertained  the  cross-action  unless  by  his  submission 
to  its  authority  and  it  has  compelled  him  to  give  that 
consent  by  refusing  to  proceed  in  the  action  which  he  has 
instituted  against  the  original  defendants  unless  he  con- 
sented to  do  justice  by  appearing  to  the  cross-action  which 
they  desired  to  institute  against  him.  He  has  thought  fit 
to  comply  with  these  terms,  and  he  does  not  now  complain 
of  them,  and  it  would  be  singular  if  the  party  who  himself 
is  by  law  subject  to  such  tribunal  could  raise  an  objection 
that  the  Consular  Court  had  no  right  to  exercise  the  juris- 
diction which,  at  his  instance,  it  has  enforced  against  his 
adversary.  The  general  right  of  the  Consular  Court  to 
entertain  the  suit  under  these  circumstances  is  perfectly 
clear  and  to  throw  any  doubt  upon  it  would  be  to  subvert  all 
the  principles  upon  which  justice  is  administered  amongst 
the  subjects  of  Christian  powers  in  this  and  other  countries 
of  the  East. 

Hitherto  we  have  spoken  of  jurisdiction  in  its  general 
sense  and  have  stated  our  conclusion  that  for  a  case  of 
collision  in  the  Sea  of  Marmora  some  legal  proceeding  would 
belong  to  the  Consular  Court.  Now  we  must  inquire  fur- 
ther whether  it  was  competent  to  that  Court  to  proceed  as 
if  it  were  invested  with  the  authority  of  a  Vice-Admiralty 
Court.  We  think  that  question  must  be  solved  by  reference 
to  the  usage  which  has  prevailed;  the  usage  respecting 
the  arrest  of  vessels,  the  proceeding  in  rem. 

So  far  as  we  can  ascertain  from  the  information  furnished 
to  us,  there  appears  to  have  been  one  case  of  collision 
possibly  more,  but  there  is  proof  of  one  only.  The  Con- 
sular Judge,  however,  states  that  proceedings  in  rem  have 
been  customary  and  especially  in  causes  of  bottomry.  Now 
causes  of  bottomry,  where  the  ship  is  arrested,  are  clearly 
proceedings  in  7'em,  usually  of  admiralty  jurisdiction.  We 
think  that  by  the  very  extensive  and  comprehensive  terms 
used,  such  a  jurisdiction,  whether  to  be  called  by  that  name, 
has  been  conferred  upon  the  Consular  Court  and  if  in  bot- 


26  I  EXTRATERRITORIAL  CASES. 

tomry  we  can  discover  no  reason  why  it  should  not  exist  in 
causes  of  collision :  the  same  considerations  of  convenience, 
the  same  necessity  for  obtaining  justice,  subsist  in  both 
cases.  It  is  not  necessary  to  declare  that  the  Consular 
Court  possessed  full  admiralty  jurisdiction;  it  is  sufficient 
to  express  our  concurrence  with  the  Consular  Judge  that, 
with  respect  to  proceedings  in  rem,  the  causes  of  action 
occurring  within  given  limits,  and  the  usage  of  so  treating 
cognate  causes,  such  as  bottomry  cases,  justify  him  in  the 
course  he  has  pursued  on  the  present  occasion,  and,  there- 
fore, we  must  uphold  the  jurisdiction. 

There  is,  however,  another  question  which  required  our 
serious  attention.  There  was  a  cross-action  in  addition  to 
the  original  action.  The  judge  found  both  parties  to  blame 
and  he  ordered  that  the  damage  sustained  by  each  should 
be  added  together  and  each  party  pay  one  half.  The 
effect  on  the  present  occasion  would  be  a  loss  to  the  Laconia 
of  about  £20,000 :  but  it  is  not  to  the  effect  we  must  look ; 
we  must  direct  our  attention  to  other  considerations.  Had 
the  rule  prevailing  at  common  law  been  adopted,  each 
party  would  have  had  to  bear  his  own  loss.  Opinions  may 
differ,  and  indeed  do  differ,  as  to  what  course  is  most  con- 
sonant to  justice.  This  question  we  are  not  called  upon 
to  decide ;  but  what  we  have  to  decide  is,  when  the  proceed- 
ing is  in  rem,  what  ought  to  be  the  rule?  What  was  the 
intention  of  the  authority  which  sanctioned  and  made  legal 
the  exercise  of  the  jurisdiction  in  rem?  Could  it  be  in- 
tended to  constitute  a  jurisdiction  in  rem  with  a  common 
law  remedy?  We  think  that  no  such  anomaly  could  be 
intended  and,  therefore,  concur  in  the  view  of  the  Con- 
sular Court.  We  regard  the  recent  Order  in  Council,  by 
which  a  certain  admiralty  jurisdiction  is  expressly  given, 
not  as  creating  such  jurisdiction,  but  only  as  expressing 
more  distinctly  and  with  greater  detail  the  authority  which 
had  been  already  conferred  by  former  Orders. 

It  now  becomes  their  Lordships'  duty  to  state  the 
determination  at  which  they  have  arrived  upon  the  merits 
of  the  case.  After  the  most  careful  and  anxious  consider- 
ation of  every  part  of  the  evidence  and  of  every  point  in 


RE  CONSULAR  JURISDICTION,  APRIL  21,    1866.  27 

the  argument,  their  Lordships  concur  in  the  intimation 
given  by  the  learned  Judge  of  the  Court  below,  that  "under 
the  circumstances  it  would  seem  a  simple,  and  perhaps  it 
would  be  the  right  course,  to  say  neither  party  has  proved 
his  case."  That  is  the  decision  which  their  Lordships 
have  adopted,  and  they  will,  therefore,  humbly  recommend 
to  Her  Majesty  that  the  judgment  of  the  Supreme  Con- 
sular Court  be  reversed,  and  that  both  actions  be  dis- 
missed, each  party  paying  their  own  costs  throughout,  and 
that  the  moneys  deposited  be  given  up  and  the  securities 
vacated. 


RE  CONSULAR  JURISDICTION   IN  JAPAN. 

[April  21,  1866;   11  Ops.  Attys.-Gen.  474.] 

SYII.ABUS. 

(By  the  author  and  the  Editor.) 

1.  CONSULAR  JURISDICTION:  Set  Off.     An  American  consular  court 

in  Japan  cannot,  in  the  case  of  a  suit  by  a  person  not  a  citizen 
of  the  United  States  against  an  American  merchant,  entertain 
a  plea  of  set-off  further  than  to  the  extent  of  the  claim  asserted 
by  the  plaintiff. 

2.  Id.  :  No  Judgment  Against  Alien.     Such  a  court  cannot,  under  the 

treaty  with  Japan  and  the  statutes  of  the  United  States,  render 
a  judgment  against  a  person  of  foreign  birth  not  a  citizen  of  the 
United  States. 

Speed,  Attorney -Geyieral  (To  Secretary  of  State  Seward)  : 
I  have  the  honor  to  acknowledge  the  receipt  of  your  letter 
of  January  10,  1866,  together  with  a  dispatch,  No.  20, 
dated  May  30,  1865,  from  the  United  States  Consul  at 
Kanagawa  relative  to  a  case  tried  by  the  consular  court  at 
that  place. 

From  that  despatch,  it  appears  that  Adrian  &  Co.,  Dutch 
merchants,  brought  an  action  of  debt  in  the  consular  court 
against  Schultz,  Reis,  &  Co.,  American  citizens.  The  de- 
fendants in  the  action,  Schultz,  Reis,  &  Co.,  pleaded  a  set- 
off, and  the  Consul  rendered  judgment  in  favor  of  the 
defendants  against  the  Dutch  merchants  for  $1,952.65. 


28  I  EXTRATERRITORIAL  CASES. 

Upon  these  facts,  you  ask  me  the  following  questions : 

"1.  Is  the  law  of  'set-off'  properly  to  be  recognized  in  a  consular 
court  of  the  United  States? 

2.  As  the  consular  court  at  Kanagawa  is  the  creature  of  the  treaty 
with  Japan  and  the  statutes  of  the  United  States,  can  it  render 
judgment  against  a  person  of  foreign  birth,  not  a  citizen  of  the  United 
States,  in  Japan?" 

Your  first  question  is  a  general  one,  and  applies  to  all 
cases  which  may  be  brought  for  debt  before  a  consular  court 
in  Japan,  no  matter  who  may  be  the  parties  thereto. 

In  an  action  between  citizens  of  the  United  States,  in  the 
consular  court  in  Japan,  the  doctrine  of  "set-off"  certainly 
applies;  not  so,  however,  when  the  subject  of  another 
country  is  plaintiff. 

By  the  6th  article  of  the  treaty  betwixt  the  United 
States  and  the  Empire  of  Japan,  it  is  provided,  that 

"Americans  committing  offences  against  Japanese  shall  be  tried 
in  American  consular  courts,  and,  when  guilty,  shall  be  punished 
according  to  the  American  law.  Japanese  committing  offences  against 
Americans  shall  be  tried  by  the  Japanese  authorities,  and  punished 
according  to  Japanese  law.  The  consular  courts  shall  be  open  to 
Japanese  creditors,  to  enable  them  to  recover  their  just  claims  against 
American  citizens;  and  the  Japanese  courts  shall,  in  like  manner,  be 
open  to  American  citizens,  for  the  recovery  of  their  just  claims  against 
Japanese." 

It  will  be  perceived  that  the  high  contracting  powers 
understood  either  that  consular  courts  existed  in  Japan  by 
usage  and  custom,  or  that  they  had  their  existence  and 
derived  their  powers  from  statutes  of  the  Government  of 
the  United  States.  They  are  spoken  of  as  tribunals  which 
had  then  a  rightful  and  lawful  existence. 

The  legislation  of  the  Government  shows  that  consular 
courts  had  been  established  in  the  countries  long  before 
the  treaty  with  Japan  was  concluded.  It  is  fair  to  infer 
that  the  Japanese  Government  intended  to  concede  to  the 
Government  of  the  United  States  the  right  and  power  to 
create  consular  courts  in  Japan  with  as  broad  or  as  limited 
jurisdiction  as  the  United  States  might  deem  proper,  except 
as  to  matters  of  controversy  betwixt  Japanese  and  Amer- 
icans. 


RE  CONSULAR  JURISDICTION   APRIL    21,    1866.  29 

I  do  not  think,  however,  it  can  be  fairly  inferred,  from 
this  article  of  the  treaty,  that  it  was  within  the  contempla- 
tion of  the  parties  that  the  Government  of  the  United 
States  should  confer  upon  American  consular  courts  in 
Japan  jurisdiction  over  the  subjects  or  citizens  of  other 
countries  resident  in  Japan. 

Turning  from  the  treaty  to  the  statute,^  we  find,  by 
the  1st  section  of  the  act,  that,  in  addition  to  other  powers 
and  duties  imposed  upon  ministers  and  consuls,  they  shall 
be  invested  with  the  judicial  power  described  in  the  statute, 
which  shall  appertain  to  the  office  of  minister  and  consul, 
and  be  a  part  of  the  duties  belonging  thereto,  wherein  the 
same  is  allowed  by  treaty.  The  3rd  section  says  that  the 
jurisdiction  of  the  consular  courts  shall  embrace  all  con- 
troversies between  citizens  of  the  United  States  and  others 
provided  for  by  such  treaties  respectively;  and  the  4th 
section  declares  that  the  laws  of  the  United  States,  so  far 
as  is  necessary  to  execute  such  treaties  respectively,  shall 
extend  to  all  citizens  of  the  United  States  in  the  said  coun- 
tries, and  over  all  others,  to  the  extent  that  the  terms  of 
the  said  treaties  respectively  justify  or  require,  so  far  as 
such  laws  are  suitable  to  carry  the  said  treaties  into  effect. 
These  provisions  of  the  statute,  in  my  opinion,  extend 
the  laws  of  the  United  States  over  citizens  of  the  United 
States  resident  in  Japan,  and  fully  invest  the  consular  courts 
of  Japan  with  authority  to  hear  and  determine  all  matters 
of  controversy  arising  between  citizens  of  the  United  States. 
Under  the  treaty  with  Japan,  the  Government  of  the  United 
States  had  the  authority  to  give  such  jurisdiction  to  con- 
sular courts. 

I  do  not  think  that  either  the  treaty  or  the  statute  confers 
express  jurisdiction  upon  consular  courts  either,  to  exercise 
criminal  or  civil  jurisdiction  over  persons  in  Japan 
who  are  not  citizens  of  the  United  States  or  subjects  of 

^  "An  act  to  carry  into  effect  provisions  of  the  treaties  between  the 
United  States,  China,  Japan,  Siam,  Persia,  and  other  countries,  giving 
certain  judicial  powers  to  ministers  and  consuls,  or  other  functionaries 
of  the  United  States  in  those  countries,  and  for  other  purposes," 
approved  June  22,  1860.      (12   Stats,   at   Large,   72.) 


30  I  EXTRATERRITORIAL  CASES. 

the  Japanese  empire;  and,  if  the  question  were  an  open 
one,  I  should  doubt  whether  a  consular  court,  established 
under  the  act  of  Congress,  could  entertain  a  suit  by  a  Dutch 
subject  against  a  citizen  of  the  United  States;  but  I  find 
that,  in  a  very  able  and  learned  opinion,  delivered  by 
Attorney-General  Gushing,  he  has  expressed  the  opinion, 
that,  under  the  treaty  with  Ghina,  a  suit  may  be  brought 
by  an  Englishman  or  Frenchman  in  an  American  consular 
court  of  the  United  States  against  an  American  citizen. 
That  opinion  -  was  delivered  September  19,  1855.  The 
treaty  with  Japan  was  concluded  at  the  city  of  Yedo,  on  the 
29th  of  July,  1858,  and  exchanged  at  the  city  of  Washington 
on  the  22d  of  May,  1860,  and  proclaimed  the  next  day  by 
the  President.^  That  treaty  was  doubtless  made  with  refer- 
ence to  the  opinion  as  given  by  Attorney-General  Gushing; 
and,  when  the  words  "consular  courts"  were  used  in  the 
treaty,  they  were  used  doubtless  in  reference  to  the  courts 
as  described  in  his  opinion.  And  the  act  of  Gongress, 
before  referred  to,  is  almost  a  copy  of  the  act  upon  which 
Attorney-General  Gushing  commented  in  his  opinion.  I 
find  in  the  "United  States  Consul's  Manual,"  published  in 
1856,  and  which  is  in  the  hands  of  consuls  of  the  United 
States,  that  the  opinion  of  Attorney-General  Gushing  is  set 
down  as  the  law  for  their  government. 

Considering,  then,  the  date  of  the  Japanese  treaty,  the 
act  of  Gongress,  the  opinion  of  Attorney-General  Gushing, 
and  the  fact  that  the  Consul's  Manual  lays  it  down  that 
consular  courts  have  jurisdiction  of  controversies  wherein 
citizens  and  subjects  of  other  countries  are  plaintiffs  and 
citizens  of  the  United  States  are  defendants,  it  would  not 
be  proper  now  to  consider  the  question  as  an  open  one. 

But  that  does  not  dispose  of  the  question  of  jurisdiction 
upon  a  plea  of  "set-off."  Set-off  is  a  cross-action — a  suit 
wherein  the  defendant  becomes  the  plaintiff  and  the  plain- 
tiff in  the  original  suit  the  defendant.  Courts  derive  their 
powers  from  the  law,  and  not  from  the  consent  of  parties. 
Arbitrators  are  made  by  the  parties.     The  law  makes  the 


7  Opinions,  518. 
'  12  Stats,  at  Large,  1051. 


RE  CONSULAR  JURISDICTION,  APRIL   21,    1866.  31 

courts.  Arbitrators  can  submit  what  they  please  for  award. 
Courts  cannot  take  jurisdiction  of  matters  except  as  au- 
thorized by  the  law.  This  is  true  of  courts  of  limited 
jurisdiction  and  especially  true  in  regard  to  courts  that 
exist  under  treaties  between  independent  countries  and  ex- 
ercising powers  in  a  country  in  which  the  judge  of  the  court 
is  a  foreigner,  owing  no  allegiance  there,  and  whose  power 
exists  only  by  the  courtesy  of  the  country  in  which  he 
exercises  the  functions  of  his  office.  The  maxim  that  a 
court  should  amplify  its  jurisdiction  for  the  sake  of  justice 
does  not  apply  to  a  court  of  limited  jurisdiction  and  ought 
not  to  apply  to  a  court  existing  under  a  treaty  and  exercis- 
ing its  authority  in  a  foreign  country.  A  jurisdiction  to 
hear  and  determine  a  complaint  made  by  the  subject  of 
another  country  against  a  citizen  of  the  United  States,  does 
not  confer  jurisdiction  of  a  cross-action  in  a  consular 
court.     So  far  as  set-off  is  a  defence  it  may  be  pleaded. 

I  am  of  opinion,  therefore,  upon  the  case  submitted,  that 
a  consular  court  could  not  entertain  the  plea  of  set-off* 
further  than  the  extent  of  the  claim  asserted  by  the  Dutch 
merchant ;  and,  secondly,  that  the  consular  court  could  not, 
under  the  treaty  with  Japan,  and  the  statutes  of  the  United 

*  In  Imperial  Japanese  Government  v.  Peninsular  &  Oriental  Com- 
pany, 1895,  A.  C,  644,  which  was  an  action  originally  brought  in 
the  British  Consular  Court  at  Yokohama  for  damages  to  a  warship 
resulting  from  a  collision  with  one  of  defendant's  vessels,  each  party 
alleged  that  the  other  alone  was  at  fault  and  defendant  asked  leave 
to  file  a  counterclaim  which  was  refused  by  the  Consular  Court, 
allowed  by  the  Supreme  Court  on  appeal,  but  finally  denied  by  the 
Judicial  Committee  of  the  Privy  Council,  where  it  was  observed: 

"If  the  respondents'  contention  be  well  founded,  it  must  apply 
equally  where  a  British  subject  brings  an  action  in  a  Japanese  or 
Chinese  Court  in  respect  of  a  claim  against  a  Japanese  or  Chinese 
subject.  The  Japanese  or  Chinese  Court  would  be  entitled  to 
allow  a  counter-claim  to  be  made  against  a  British  subject  and 
to  require  security  to  be  given  to  satisfy  the  counter-claim,  what- 
ever its  amount  and  however  much  in  excess  of  the  claim,  and  to 
stay  proceedings  in  the  action  until  the  security  was  given.  The 
effect  would  be  to  deny  the  British  subject  any  redress  in  the  local 
court  except  upon  the  terms  of  his  submitting  to  its  arbitrament  a 
dispute  which  under  the  treaty  was  reserved  exclusively  for  the  de- 
termination of  the  British  Consular  Court."     Ed. 


32  I  EXTRATERRITORIAL  CASES. 

States,  render  a  judgment  over  against  a  person  of  foreign  ' 
birth,  not  a  citizen  of  the  United  States,  in  Japan. 


IN  THE  UNITED  STATES  SUPREME  COURT. 
Francis  Dainese  v.  Charles  Hale. 

[Decided  October  25,  1875;  91  U.  S.  13,  23  L.  ed.  190.] 

SYLLABUS. 

(By  the  Court  and  the  Editor.) 

1.  CONSULS:  Judicial  Powers  are  not  necessarily  incident  to  the  of- 

fice of  consul  but  are  usually  conferred  upon  consuls  in  non- 
Christian  countries  as  regards  conti-oversies  involving  their 
own  nationals. 

2.  Id.  :   Id.  :  The  existence  and  extent  of  such  powers  depend  on  the 

treaties  and  laws  of  the  nations  concerned. 

3.  Id.:  Id.:  Turkey.     The  Turco- American  treaty  of  1862,  if  not  that 

of  1830,  concedes  to  the  United  States  the  same  consular  juris- 
diction, civil  and  criminal,  as  is  enjoyed  by  other  Christian  na- 
tions, and  the  act  of  Congress  of  June  22,  1860,  provides  the 
regulations  for  its  exercise. 

4.  Id. :  -Id.:   Id.     But  such  jurisdiction  rests  on  the  laws  and  usages 

of  the  country  which  must  be  pleaded  and  proved  and  will  not  be 
judicially  noticed  as  a  rule. 

In  error  to  the  District  of  Columbia  Supreme  Court. 

Messrs.  F.  P.  Cuppy  and  -S.  S.  Henkle,  for  plaintiff  in 
error. 

Mr.  W.  Penn  Clar^ke,  for  defendant  in  error. 

BRADLEY,  J.: 

This  action  was  brought  to  recover  the  value  of  certain 
goods,  chattels  and  credits  of  the  plaintiff,  which  the  de- 
fendant, in  November,  1864,  then  being  consul-general 
of  the  United  States  in  Egypt,  caused  to  be  attached.  The 
declaration  alleged  that  the  defendant,  by  usurpation  and 
abuse   of  his  power  as  such  consul-general,   and  for  the 

*  See  Papayanni  v.  Russian  Steam  Navigation  Co.,  ante,  pp.  12-25. 

In  the  China  and  Korea  Order  in  Council  of  1904  it  was  expressly 
provided  [Sec.  151   (3)]: 

"A  cross-action  or  counter-claim  shall  not  be  brought  in  the  Court 
against  a  plaintiff,  being  a  foreigner."     Ed. 


DAINESE  V.   HALE,  OCT.    25,    1875.  33 

malicious  purpose  of  injuring  the  plaintiff,  took  cognizance 
of  a  certain  controversy  between  the  plaintiff  and  Richard 
H.  and  Anthony  B.  Allen  (all  being  citizens  of  the  United 
States,  and  none  of  them  residents  of  or  sojourners  within 
the  Turkish  dominions  at  that  time) ,  and  made  and  issued 
the  order  of  attachment  by  virtue  of  which  the  seizure  in 
question  was  made. 

The  defendant  pleaded  that,  at  the  time  of  issuing  the 
attachment,  he  was  agent  and  consul-general  of  the  United 
States  in  Egypt,  and  was  furnished  with  a  letter  of  credence 
from  the  President  of  the  United  States  to  the  Pasha ;  that 
in  his  said  official  capacity  he  exercised  the  functions  and 
duties  of  a  minister;  and  by  the  law  of  nations,  as  well  as 
the  laws  of  the  United  States,  he  was  invested  with  judicial 
functions  and  power  over  citizens  of  the  United  States  resid- 
ing in  Egypt,  and  in  the  exercise  of  those  functions,  took 
cognizance  of  the  cause  referred  to  in  the  declaration  and 
issued  the  attachment  complained  of.  To  this  plea  there 
was  a  general  demurrer. 

The  defendant,  by  his  plea,  asked  the  court  to  take  ju- 
dicial notice  that  his  official  character  gave  him  the  juris- 
diction which  he  assumed  to  exercise.  Could  the  court  do 
this?     *     *     * 

It  cannot  be  contended  that  every  consul,  by  virtue  of 
his  office,  has  power  to  exercise  the  judicial  functions 
claimed  by  the  defendant;  for  it  is  conceded  that  this  is 
not  the  case  in  Christian  countries.  And  whilst,  on  the 
other  side,  it  is  also  conceded  that  in  Pagan  and  Moham- 
medan countries  it  is  usual  for  the  ministers  and  consuls 
of  European  States  to  exercise  judicial  functions  as  between 
their  fellow-subjects  or  citizens,  it  clearly  appears  that  the 
extent  to  which  this  power  is  exercised  depends  upon  trea- 
ties and  laws  regulating  such  jurisdiction.  The  instructions 
given  by  the  British  Foreign  Office  to  their  consuls  in  the 
Levant  in  1844,  as  quoted  by  Mr.  Phillimore,'  do  not  claim 
anything  more.     They  say : 

"The  right  of  British  consular  officers  to  exercise  any  jurisdic- 
tion in  Turkey,  in  matters  which  in  other  countries  come  exclusively 

'Int.  Law,  Vol.  IL  p.  273,  sec.  277. 

14008  O.  W. 3 


34  I  EXTRATERRITORIAL  CASES. 

under  the  control  of  the  local  magistracy,  depends  originally  on  the 
extent  to  which  that  right  has  been  conceded  by  the  sultans  of  Turkey 
to  the  British  Crown;  and,  therefore,  the  right  is  strictly  limited  to 
the  terms  in  which  the  concession  is  made.  The  right  depends,  in 
the  next  place,  on  the  extent  to  which  the  Queen,  in  the  exercise  of 
the  power  vested  in  Her  Majesty  by  Act  of  Parliament,  may  be 
pleased  to  grant  to  any  of  her  consular  servants  authority  to  exercise 
jurisdiction  over  British  subjects." 

Historically,  it  is  undoubtedly  true,  as  shown  by  numerous 
authorities  quoted  by  Mr,  Warden  in  his  treatise  on  "The 
Origin  and  Nature  of  Consular  Establishments,"  that  the 
consul  was  originally  an  officer  of  large  judicial  as  well  as 
commercial  powers,  exercising  entire  municipal  authority 
over  his  countrymen  in  the  country  to  which  he  was  ac- 
credited. But  the  changed  circumstances  of  Europe,  and 
the  prevalence  of  civil  order  in  the  several  Christian  States, 
have  had  the  effect  of  greatly  modifying  the  powers  of  the 
consular  office;  and  it  may  now  be  considered  as  generally 
true,  that,  for  any  judicial  powers  which  may  be  vested  in 
the  consuls  accredited  to  any  nation,  we  must  look  to  the 
express  provisions  of  the  treaties  entered  into  with  that 
nation,  and  to  the  laws  of  the  States  which  the  consuls 
represent. 

The  transactions  which  are  the  subject  of  this  suit  took 
place  in  1864;  and  the  powers  of  our  Consul-General  in 
Egypt  at  that  time  must  be  regulated  by  the  treaties  with 
Turkey  and  by  the  laws  of  the  United  States  then  in  force. 

The  first  treaty  ^  between  the  United  States  and  the  Ot- 
toman Porte  was  concluded  in  1830  and,  amongst  other 
things,  it  provided,  in  article  III,  that 

"American  merchants  established  in  well-defended  States  of  the 
Sublime  Porte  for  purposes  of  commerce  shall  not  be  disturbed  in 
their  affairs,  nor  shall  they  be  treated  in  any  way  contraiy  to  es- 
tablished usages." 

By  article  IV,  it  was  further  provided  as  follows: 

"If  litigations  and  disputes  should  arise  between  the  subjects  of 
the  Sublime  Porte  and  citizens  of  the  United  States,  the  parties  shall 
not  be  heard,  nor  shall  judgment  be  pronounced,  unless  the  American 
dragoman   be   present.     Causes   in   which   the   sum    may   exceed    five 

'  8  Stats,  at  Large,  408. 


DAINESE  V.   HALE,  OCT.    25,    1875.  35 

hundred  piasters  shall  be  submitted  to  the  Sublime  Porte,  to  be  de- 
cided according  to  the  laws  of  equity  and  justice.  Citizens  of  the 
United  States  of  America,  quietly  pursuing  their  commerce,  and  not 
being  charged  or  convicted  of  any  crime  or  offense,  shall  not  be 
molested;  and,  even  when  they  may  have  committed  some  offense, 
they  shall  not  be  arrested  and  put  in  prison  by  the  local  authorities, 
but  they  shall  be  tried  by  their  minister  or  consul  and  punished  ac- 
cording to  their  offense,  following,  in  this  respect,  the  usage  observed 
towards  others  Franks." 

In  1848  an  act  of  Congress  was  passed,^  entitled 

"An  act  to  carry  into  effect  certain  provisions  in  the  treaties  be- 
tween the  United  States  and  China  and  the  Ottoman  Porte,  giving 
certain  judicial  powers  to  Ministers  and  Consuls  of  the  United  States 
in   those   countries." 

A  treaty  '  had  been  made  with  China  in  1844,  conceding 
to  the  authorities  of  the  United  States  full  civil  and  criminal 
jurisdiction  between  citizens  of  the  United  States  in  that 
country.  The  law  was  passed  in  reference  to  this  treaty 
and  to  that  with  the  Ottoman  Porte  before  cited. 

This  act  contained  regulations  as  to  the  mode  of  exercis- 
ing the  judicial  powers  stipulated  for  in  the  treaty  with 
China.  It  conferred  these  powers  upon  the  resident  com- 
missioner and  consuls,  respectively,  and  authorized  them  to 
adjudicate  in  accordance  with  the  laws  of  the  United  States- 
and  the  common  law,  supplemented,  when  these  were  in- 
sufficient, by  decrees  and  regulations  to  be  made  by  the 
commissioner  himself.  The  Commissioner,  with  the  advice 
of  the  consuls,  was  to  prescribe  the  forms  of  process  and 
proceeding.  By  the  22nd  section  of  the  act,  its  provisions, 
so  far  as  related  to  crime  committed  by  citizens  of  the 
United  States,  were  extended  to  Turkey  under  the  treaty 
of  1830,  to  be  executed  by  the  ministers  and  consuls  of 
the  United  States  in  that  country,  who  were  ex-officio  vested 
with  the  powers  given  by  the  act  to  similar  officials  in 
China,  so  far  as  regarded  the  punishment  of  crime. 

It  is  evident  that  this  act  failed  to  confer  upon  the  consuls 
of  the  United  States  in  Turkey  any  power  to  exercise  ju- 
dicial functions  in  civil  cases,  whatever  may  have  been  the 
scope  and  intention  of  the  treaty  of  1830.     Whilst  it  may 

'9  Stats,  at  Large,  276. 
"  8  Stats,  at  Large,  592. 


36  I  EXTRATERRITORIAL  CASES. 

be  true  that  the  expression  in  the  third  article  of  the  treaty, 
that  American  merchants  shall  not  be  disturbed  in  their 
affairs,  nor  treated  contrary  to  established  usages,  was 
understood  to  and  did  confer  upon  American  merchants  the 
same  privileges  of  exterritoriality  enjoyed  by  the  subjects 
of  other  Christian  nations,  the  act  of  1848  did  not  assume 
to  enforce  such  a  construction  of  it. 

But  in  1860,  another  act '"  was  passed  to  carry  into  effect 
a  new  treaty  made  with  China  in  1858,  and  other  treaties  '^ 
made  with  Japan,  Siam,  Persia  and  other  countries  by 
which  very  full  and  explicit  regulations  were  again  made 
in  reference  to  the  exercise  of  judicial  powers  by  ministers 
and  consuls  of  the  United  States  in  those  countries.  By  the 
21st  section  of  this  act,  the  same  declaration  was  made  as 
in  the  22nd  section  of  the  Act  of  1848  in  reference  to  the 
criminal  jurisdiction  to  be  exercised  by  the  minister  and 
consuls  of  the  United  States  in  Turkey;  and  a  clause  was 
added,  giving  them  civil  jurisdiction  also,  as  follows : 

"Who  [referring  to  such  minister  and  consuls]  are  hereby  ex- 
officio  vested  with  the  powers  herein  conferred  upon  the  minister  and 
consuls  in  China,  for  the  purposes  above  expressed,  so  far  as  regards 
the  punishment  of  crime"  adding,  "  and  also  for  the  exercise  of  juris- 
diction in  civil  cases  wherein  the  same  is  permitted  by  the  laws  of 
Turkey,  or  its  usages  in  its  intercourse  with  the  Franks  or  other 
foreign  Christian  nations." 

So  far,  then,  as  the  true  construction  of  the  treaty  of  1830 
would  permit  the  exercise  of  civil  jurisdiction  by  our  consuls, 
the  act  of  1860  authorized  it  to  be  exercised,  and  supplied 
all  the  regulations  necessary  for  that  purpose. 

In  1862,  another  treaty "  was  entered  into  with  the  Ot- 
toman Porte,  by  which,  after  confirming  all  such  parts  of 
the  treaty  of  1830  as  were  not  abrogated  or  changed, 
amongst  other  things  it  was  provided  in  article  I,  as 
follows : 

"All  rights,  privileges  or  immunities  which  the  Sublime  Porte  now 
grants  or  may  hereafter  grant  to   or   suffer  to  be   enjoyed   by  the 

'12    Stats,   at   Large,   72. 
*12  Stats,  at  Large,  1081. 
'  12  Stats,  at   Large,   1213. 


DAINESE  V.   HALE,  OCT.    25,    1875.  37 

subjects,  ships,  commerce,  oi*  navigation  of  any  foreign  power,  shall 
be  equally  granted  to  and  exercised  and  enjoyed  by  the  citizens,  ves- 
sels, commerce  and  navigation  of  the  United  States  of  America." 

If,  therefore,  it  be  true,  as  laid  down  by  writers  and 
public  documents,  that  the  subjects  of  other  Christian  na- 
tions have  and  enjoy  in  Turkey  the  right  to  have  their 
civil  controversies  decided  by  their  own  minister  and  con- 
suls, it  would  seem  clear,  that  under  the  treaty  of  1862, 
if  not  under  that  of  1830,  the  same  right  is  guaranteed  to 
citizens  of  the  United  States. 

But  it  is  objected,  that,  in  1864,  no  act  had  been  passed 
by  Congress  to  carry  the  last  treaty  into  effect.  Such  an 
act  *  was  passed  in  1866,  simply,  however,  extending  to 
Egypt  and  the  Consul-General  there  the  provisions  of  the 
act  of  1860.  This  clause  was  probably  adopted  merely  to 
obviate  any  doubt  on  the  subject.  For  as  treaties  made 
under  the  authority  of  the  United  States  are,  by  the  Consti- 
tution, declared  to  be  part  of  the  supreme  law  of  the  land, 
when  they  are  complete  in  themselves,  and  need  no  sup- 
plemental legislation  to  carry  them  into  effect,  such  legisla- 
tion is  not  necessary  for  the  purpose  of  giving  them  force 
and  validity.  So  far  as  relates  to  the  jurisdiction  in  ques- 
tion, this  is  the  character  of  the  treaty  of  1862,  taken  in 
connection  with  the  act  of  1860.  The  act  gave  the  juris- 
diction so  far  as  usage  in  Turkey  would  permit  it.  The 
treaty  secured  the  consent  of  the  Turkish  Government 
to  its  exercise. 

The  State  Department  seems  to  have  regarded  the  Treaty 
of  1830  as  establishing  the  jurisdiction  in  question.  In  the 
instructions  contained  in  the  Consuls'  Manual,^  promulgated 
by  the  Department  in  December,  1862,  it  is  said  ^°  that  the 
acts  of  Congress  of  1848  and  1860  provided  in  terms  for 
the  exercise  of  judicial  authority  by  ministers  and  consuls 
in  Turkey  only  so  far  as  regards  the  punishment  of  crime, 
leaving  the  question   of  civil   jurisdiction  to   stand   upon 

'  Sec.  11  of  Appropriation  Bill,  14  Stats,  at  Large,  322. 
"  Adopting  the  learned  opinion  of  Attorney  General  Gushing,  dated 
Oct.  23,  1855,  7  Op.  Attys.  Gen.,  565. 
'"  Sec.  165. 


4793fJ 


38  I  EXTRATERRITORIAL  CASES. 

treaties  of  the  peculiar  public  law  of  the  Levant,  And  after 
referring  to  the  language  of  Article  III  of  the  treaty  of 
1830,  which  stipulated  that: 

"American  merchants  established  in  the  well-defended  States  of 
the  Sublime  Porte  for  purposes  of  commerce,  shall  not  be  disturbed 
in  their  affairs,  nor  shall  they  be  treated  in  any  way  contrary  to 
establish  usages," 

and  conceding  that  its  construction  might  admit  of  dis- 
cussion, the  following  conclusions  were,  nevertheless, 
reached : 

As  to  all  civil  affairs  to  which  no  subject  of  Turkey  is  a  party, 
Americans  are  wholly  exempt  fi-om  the  local  jurisdiction;  and  in 
civil  matters,  as  well  as  criminal,  Americans  in  Turkey  are  entitled 
to  the  benefit  of  "the  usage  observed  towards  other  Franks."  '■'     * 

The  phrase  in  the  second  article  engages  that  citizens  of  the  United 
States  in  Turkey  shall  not  be  "treated  in  any  way  contrary  to  es- 
tablished usages"  which  "are  the  absolute  exemption  of  all  Franks, 
in  controversies  among  themselves,  from  the  local  jurisdiction  of  the 
Porte." 

The  general  doctrine  thus  in  force  in  the  Levant  of  the  exterri- 
toriality of  foreign  Christians,  has  given  rise  to  a  complete  system 
of  peculiar  municipal  and  legal  administration,  consisting  of: 

1.  Turkish  tribunals  for  questions  between  subjects  of  the  Porte 
and  foreign  Christians. 

2.  Consular  courts  for  the  business  of  each  nation  of  foreign  Chris- 
tians. 

3.  Trial  of  questions  between  foreign  Christians  of  different  na- 
tions in  the  consular  court  of  the  defendant's  nation. 

4.  Mixed  tribunals  of  Turkish  magistrates  and  foreign  Christians 
at  length  substituted  in  part  for  cases  between  Turks  and  foreign 
Christians. 

5.  Finally,  for  causes  between  foreign  Christians,  the  substitu- 
tion at  length  of  mixed  tribunals  in  place  of  the  separate  courts — an 
ai'rangement  introduced  first  by  the  legations  of  Austria,  Great  Bri- 
tain, France,  and  Russia,  and  then  tacitly  acceded  to  by  the  legations 
of  other  foreign  Christian  nations." 

These  conclusions,  being  publicly  issued  by  the  proper 
Executive  Department  of  the  Government  for  the  instruc- 
tion and  guidance  of  our  consuls,  are  entitled  to  the  highest 
respect  in  construing  the  statutes  and  treaties  upon  which 


Consul's  Manual  of  Dec,  1862,  sees.  169-171. 


DAINESE  V.   HALE,  OCT.    25,    187  5.  39 

their  powers  depend.  And,  in  view  of  the  confirmatory  as 
well  as  independent  effect  of  the  act  of  1860  and  the  treaty 
of  1862,  we  have  no  doubt  that  in  1864,  when  the  transac- 
tions in  question  took  place,  the  minister  and  principal 
consuls  of  the  United  States  in  Turkey  (including  the 
Consul-General  in  Egypt)  had  all  such  jurisdiction  in  civil 
causes  between  citizens  of  the  United  States  as  was  per- 
mitted by  the  laws  of  Turkey  or  its  usages  in  its  intercourse 
with  other  Christian  nations. 

But  here  we  are  met  by  a  difficulty  arising  from  the  ex- 
treme generality  of  the  defense  set  up  in  the  plea.  What 
are  the  laws  of  Turkey  and  its  usages  in  its  intercourse 
with  other  Christian  nations  in  reference  to  the  powers 
allowed  to  be  exercised  by  their  public  ministers  and  consuls 
in  judicial  matters?  The  plea  does  not  inform  us.  It 
leaves  the  court  to  infer  or  to  take  judicial  knowledge  of 
those  laws  and  usages.  But  can  it  do  this?  Foreign  laws 
and  usages  are,  as  to  us,  matters  of  fact  and  not  matters 
of  law ;  and  although  the  court  may  take  judicial  cognizance 
of  many  matters  of  fact  of  public  importance,  yet  of  foreign 
laws  and  customs,  which  are  multiform  and  special  in  their 
character,  it  would  be  very  dangerous  for  it  to  do  so,  at 
least  without  having  had  them  brought  to  its  attention  and 
knowledge  by  previous  adjudications  or  proofs.  The  gen- 
eral fact  that  public  ministers  and  consuls  of  Christian 
States  in  Turkey  exercise  jurisdiction  in  civil  matters  be- 
tween their  fellow-citizens  or  subjects,  might  be  assumed  as 
sufficiently  attested  by  the  works  on  international  law  and 
the  acts  and  instructions  of  our  own  government.  But  the 
precise  extent  of  this  jurisdiction  is  unknown  to  us.  Whether 
it  applies  to  any  but  residents  in  Turkey,  or  to  travelers  as 
well ;  whether  to  persons  not  in  the  country  at  all  but  having 
property  there,  or  claims  against  persons  who  are  there; 
whether  to  cases  like  the  present,  where  neither  party 
resides  in  Turkey  or  is  sojourning  there,  are  questions  which 
are  not  answered  by  the  ordinary  statements  made  in  ref- 
erence to  this  jurisdiction.  As  the  power  of  the  Consuls 
of  the  United  States,  according  to  the  treaties  and  laws  as 


40  I  EXTRATERRITORIAL  CASES. 

they  stood  in  1864,  depended  on  the  laws  or  usages  of 
Turkey,  those  laws  or  usages  should  have  been  pleaded  in 
some  manner,  however  briefly,  so  that  the  court  could  have 
seen  that  the  case  was  within  them ;  for,  failing  to  do  this, 
the  plea  was  defective  in  substance,  and  judgment  should 
have  been  rendered  for  the  plaintiff  on  the  demurrer. 

The  judgment  of  the  Supreme  Court  of  the  District  of 
Columbia  must  be  reversed  and  the  cause  remanded,  with 
directions  to  allow  the  defendant  to  amend  his  plea  on 
payment  of  costs. 


IN  THE  UNITED  STATES  SUPREME  COURT. 
In  re  John  M.  Ross,  Petitioner. 

[Decided  May  25,  1891;  140  U.  S.,  453,  35  L.  ed.,  581.] 

SYLLABUS. 
(By  the  Court  and  the  Editor.) 

1.  EXTRATERRITORIALITY:     CONSTITUTION    NOT    EXTENDED.      By    the 

Constitution  of  the  United  States  a  government  is  ordained  and 
established  "for  the  United  States  of  America,"  and  not  for 
countries  outside  of  their  limits;  and  that  Constitution  can  have 
no  operation  in  another  country. 

2.  Id.:  Jury  Trial  not  Required.     The  law^s  passed  by  Congress  to 

carry  into  effect  the  provisions  of  the  treaties  granting  extra- 
territorial rights  in  Japan,  China,  etc.  (Rev.  Stat.  4083-4096), 
do  not  infringe  the  said  Constitution  tho  requiring  neither  in- 
dictment nor  jury. 
3  Id.:  "The  Term  'High  Seas'  includes  vi^aters  on  the  sea-coast  with- 
out the  boundaries  of  low-water  mark." 

4.  Id.:  Offences  on  "High  Seias."    Concurrent  Jurisdiction.    The 

jurisdiction  given  to  domestic  tribunals  of  the  United  States 
over  offences  committed  on  the  high  seas  in  the  district  where 
the  offender  may  be  found,  or  into  which  he  may  be  first  brought, 
does  not  exclude  that  of  a  consular  tribunal  in  Japan,  China, 
etc.,  to  try  for  a  similar  .offence,  committed  in  a  port  of  the 
country  in  which  the  tribunal  is  established,  when  the  offender 
is  not  taken  to  the  United  States. 

5.  Id.:   Treaties.     Article  IV  of  the  treaty  of  June  17,  1857,  with 

Japan  is  still  in  force  notwithstanding  the  provisions  in  Article 
XII  of  the  treaty  of  July  29,  1858. 


IN  RE  ROSS,  MAY   25,   1891.  41 

6.  Id.:  Ships.     When  a  foreigner  enters  the  mercantile  marine  of  a 

nation,  and  becomes  one  of  the  crew  of  a  merchant  vessel  bear- 
ing its  flag,  he  assumes  a  temporary  allegiance  to  the  flag,  and, 
in  return  for  the  protection  afforded  (454 ')  him,  becomes  subject 
to  the  laws  by  which  that  nation  governs  its  vessels  and  sea- 
men. 

7.  Id.:  Id.:  Construction.     A  law  or  treaty  should  be  construed  so 

as  to  give  effect  to  the  object  designed,  and  to  that  end  all 
its  provisions  must  be  examined  in  the  light  of  surrounding 
circumstances. 

8.  Id.:  Id.     The  fact  that  a  vessel  is  American  is  evidence  that  sea- 

men on  board  are  Americans  also. 

9.  CRIMES:  PARDONS:  Conditions.     When  a  person  convicted  of  mur- 

der accepts  a  "commutation  of  sentence  or  pardon"  upon  condi- 
tion that  he  be  imprisoned  at  hard  labor  for  the  term  of  his 
natural  life,  there  can  be  no  question  as  to  the  binding  force 
of  the  acceptance. 

The  petitioner  below,  the  appellant  here,  was  imprisoned 
in  the  penitentiary  at  Albany  in  the  State  of  New  York.  He 
was  convicted  on  the  20th  of  May,  1880,  in  the  American 
consular  tribunal  in  Japan,  of  the  crime  of  murder,  com- 
mitted on  board  of  an  American  ship  in  the  harbor  of 
Yokohama  in  that  empire,  and  sentenced  to  death. 

On  the  6th  of  August  following  his  sentence  was  com- 
muted by  the  President  to  imprisonment  for  life  in  the 
penitentiary  at  Albany,  and  to  that  place  he  was  taken  and 
there  he  has  ever  since  been  confined.  Nearly  ten  years 
afterwards,  on  the  19th  of  March,  1890,  he  applied  to  the 
Circuit  Court  of  the  United  States  for  the  Northern  District 
of  New  York  for  a  writ  of  habeas  corpus  for  his  discharge, 
alleging  that  his  conviction,  sentence  and  imprisonment  were 
unlawful,  and  stating  the  causes  thereof  and  the  attendant 
circumstances.  The  writ  was  issued,  directed  to  the  super- 
intendent of  the  penitentiary,  who  made  return  that  he  held 
the  petitioner  under  the  warrant  of  the  President,  of  which 
a  copy  was  annexed,  and  was  as  follows : 

*  The  pages  of  the  original  are  here  shown  in  parenthesis. 


42  I  EXTRATERRITORIAL  CASES. 

"Rutherford  B.  Hayes,  President  of  the  United  States  of  America, 
to  all  to  whom  these  presents  shall  come,  Greeting: 

"Whereas  John  M.  Ross,  an  American  seaman  on  board  of  the 
American  ship  'Bullion,'  was,  on  the  20th  day  of  May,  1880,  convicted 
of  the  crime  of  murder,  committed  on  board  the  said  ship  'Bullion,' 
then  in  the  harbor  of  Yokohama,  Japan,  before  Thomas  B.  Van 
Buren,  Esquire,  consul  general  (455)  of  the  United  States  at  Kana- 
gawa,  Japan,  holding  court  at  that  place,  and  was  by  said  consul 
general  on  such  conviction  aforesaid,  in  pursuance  and  by  authority 
of  the  statutes  of  the  United  States  to  that  end  made  and  provided, 
sentenced  to  be  hanged,  'at  such  time  and  place  as  the  United  States 
minister  in  Japan  may  direct,  according  to  law;' 

"And  whereas  Mr.  Bingham,  the  United  States  minister  aforesaid, 
on  the  22d  of  May  following,  approved  the  proceedings,  verdict  and 
sentence ; 

"And  whereas  the  said  minister  has  postponed  the  execution  of 
sentence,  believing  the  ends  of  justice  demand  it,  and  has  submitted 
the  record  of  the  case  to  the  Department  of  State  for  the  President's 
consideration  and  for  commutation  of  sentence  or  pardon,  if  deemed 
advisable; 

"And  whereas  the  President,  upon  a  careful  consideration  of  the 
facts  and  circumstances  of  the  case  as  they  were  presented  in  the 
record  of  the  proceedings  and  by  a  report  from  the  Secretary  of 
State,  has  arrived  at  the  conclusion  that  the  ends  of  justice  will  be 
fulfilled  by  the  infliction  of  a  less  severe  punishment  than  that  of 
death: 

"Now,  therefore,  be  it  known  that  I,  Rutherford  B.  Hayes,  Pres- 
ident of  the  United  States  of  Amei'ica,  in  consideration  of  the  prem- 
ises, divers  other  good  and  sufficient  reasons  also  me  thereunto 
moving,  do  hereby  pardon  the  said  John  M.  Ross  on  condition  that  the 
said  John  M.  Ross  be  imprisoned  at  hard  labor  for  the  term  of  his 
natural  life  in  the  Albany  penitentiary,  in  the  State  of  New  York. 

"This  order  will  be  carried  into  effect  under  the  direction  of  the 
Secretary  of  State. 

"In  testimony  whereof  I  have  hereunto  signed  my  name  and  caused 
the  seal  of  the  United  States  to  be  affixed. 

"Done  at  the  city  of  Washington  this  sixth  day  of  August,  A.  D. 
1880,  and  of  the  Independence  of  the  United  States  the  one  hundred 
and  fifth. 

"[SEAL.] 

"R.  B.  Hayes. 
"By  the  President: 
"Wm.  M.  Evarts,  Secretary  of  State." 

(456)  To  this  warrant  was  annexed  a  copy  of  the  peti- 
tioner's acceptance  of  the  conditional  pardon  of  the  Pres- 


IN  RE  ROSS,   MAY   25,    1891.  43 

ident,  certified  to  be  correct  by  the  United  States  consul 
general  in  Japan.     It  was  as  follows: 

"I,  John  M.  Ross,  the  person  named  in  the  warrant  of  conditional 
pardon  granted  to  me  by  the  President  of  the  United  States  of 
America,  dated  the  sixth  day  of  August,  1880,  and  of  which  the 
foregoing  is  a  correct  copy,  do  hereby  acknowledge  the  delivery  of 
said  original  warrant  of  conditional  pardon  to  me,  and  do  hereby 
voluntarily  and  without  qualification  accept  said  conditional  pardon 
with  the  condition  thereof  as  therein  stated,  to  wit,  that  'I,  Ruther- 
ford B.  Hayes,  President  of  the  United  States  of  America,  etc.,  etc., 
do  hereby  pardon  the  said  John  M.  Ross  on  the  condition  that  the 
said  John  M.  Ross  be  imprisoned  at  hard  labor  for  the  term  of  his 
natural  life  in  the  Albany  penitentiary,  in  the  State  of  New  York.' 

"John  M.  Ross. 

"Kanagawa,  Yokohama,  Japan,  February  28th,  1881. 

"Witness:  Thos.  B.  Van  Buren,  U.  S.  Consul  General" 

The  case  was  then  heard  by  the  Circuit  Court,  counsel 
appearing  for  the  petitioner  and  the  assistant  United  States 
attorney  for  the  government.  On  the  hearing,  a  copy  of  the 
record  of  the  proceedings  before  the  consular  tribunal  and 
of  the  communications  by  the  consul  general  to  the  state 
department  respecting  them,  on  file  in  that  department,  was 
given  in  evidence.  No  objection  was  made  to  its  admis- 
sibility. 

The  facts  of  the  case  as  thus  disclosed,  so  far  as  they 
were  deemed  material  to  the  decision  of  the  questions  pre- 
sented, were  substantially  as  follows : 

On  the  9th  May,  1880,  the  appellant,  John  M.  Ross,  was 
one  of  the  crew  of  the  American  ship  Bullion,  then  in  the 
waters  of  Japan,  and  lying  at  anchor  in  the  harbor  of  Yoko- 
hama. On  that  day,  on  board  of  the  ship,  he  assaulted 
Robert  Kelly,  its  second  mate,  with  a  knife,  inflicting  in 
his  neck  a  mortal  wound,  of  which  in  a  few  minutes  after- 
wards he  died  (457)  on  the  deck  of  the  ship.  Ross  was  at 
once  arrested  by  direction  of  the  master  of  the  vessel  and 
placed  in  irons,  and  on  the  same  day  he  was  taken  ashore 
and  confined  in  jail  at  Yokohama.  On  the  following  day, 
May  10,  the  master  filed  with  the  American  consul  general 
at  that  place,  Thomas  B.  Van  Buren,  a  complaint  against 
Ross,  charging  him  with  the  murder  of  the  mate.     It  con- 


44  I  EXTRATERRITORIAL  CASES. 

tained  sufficient  averments  of  the  offence,  was  verified  by 
the  oath  of  the  master,  and  to  it  the  consul  general  appended 
his  certificate  that  he  had  reasonable  grounds  for  believing 
its  contents  were  true.  The  complaint  described  the  ac- 
cused as  one  "supposed  to  be  a  citizen  of  the  United  States." 
On  the  18th  of  that  month  an  amended  complaint  was  filed 
by  the  master  of  the  ship  with  the  consul  general  in  which 
accused  was  described  as  "an  American  seaman,  duly  and 
lawfully  enrolled  and  shipped  and  doing  service  as  such 
seaman  on  board  the  American  ship  Bullion."  The  com- 
plaint was  also  amended  in  some  other  particulars.  It  was 
as  follows : 

"U.   S.   Consular  General  Court,   Kanagawa,  Japan. 

"Amended  Complaint. 

"John  P.  Reed,  master  of  the  American  Ship  'Bullion,'  on  oath 
complains  that  John  Martin  Ross,  an  American  seaman,  duly  and 
lawfully  enrolled  and  shipped  and  doing  service  as  such  seaman  on 
board  the  American  ship  'Bullion,'  did  on  the  early  morning  of  the 
9th  day  of  May,  1880,  on  board  of  said  ship,  while  lying  in  the 
harbor  of  Yokohama,  Japan,  and  within  the  jurisdiction  of  this 
court,  with  force  and  arms,  maliciously,  feloniously,  deliberately,  wil- 
fully and  of  his  malice  aforethought,  make  an  assault  upon  one 
Robert  Kelly,  the  mate  of  said  ship,  and  did  then  and  there  felon- 
iously, maliciously,  deliberately  and  of  malice  aforethought,  strike 
and  cut  the  said  Robert  Kelly  with  a  knife,  from  which  said 
Robert  Kelly  died  on  board  said  ship  a  short  time  thereafter. 
"Wherefore  affiant  charges  that  said  John  Martin  Ross  wilfully 
and  maliciously  killed  and  murdered  the  said  Robert  Kelly,  (458) 
and  affiant  further  says  that  said  John  Martin  Ross  is  still  a 
seaman   on   said  ship. 

"J.  P.  Reed. 

"Sworn   and   subscribed   before  me   this    18th   day   of   May,    1880. 

"Thos.  B.  Van  Buren, 

"U.  S.  Consul  General." 

To  this  amended  complaint  was  annexed  a  certificate  of 
the  consul  general  that  he  had  reasonable  grounds  for 
believing  its  contents  to  be  true,  similar  to  the  one  to  the 
original  complaint. 

Previously  to  its  being  filed  the  accused  appeared  with 
counsel  before  the  consul  general,  and  the  complaint  being 
read  to  him,  he  presented  an  affidavit  stating  that  he  was 


IN  RE  ROSS,  MAY   25,   1891.  45 

a  subject  of  Great  Britain,  a  native  of  Prince  Edward's 
Island,  a  dependency  of  the  British  Empire,  and  had  never 
renounced  the  rights  or  liabilities  of  a  British  subject  or 
been  expatriated  from  his  native  allegiance  or  been  nat- 
uralized in  any  other  country.  Upon  this  affidavit  he  con- 
tended that  the  court  was  without  jurisdiction  over  him  by 
reason  of  his  being  a  subject  of  Great  Britain  and  he 
prayed  that  he  be  discharged.  His  contention  was  termed 
in  the  record  a  demurrer  to  the  complaint. 

The  court  held  that  as  the  accused  was  a  seaman  on  an 
American  vessel,  he  was  subject  to  its  jurisdiction  and  over- 
ruled the  objection.  The  counsel  of  the  accused  then  moved 
that  the  charge  against  him  be  dismissed  on  the  ground 
that  he  could  not  be  held  for  the  offence  except  upon  the 
presentment  or  indictment  of  a  grand  jury  but  this  motion 
was  also  overruled. 

Four  associates  were  drawn,  as  required  by  statute  and 
the  consular  regulations,  to  sit  with  the  consul  general  on 
the  trial  of  the  accused,  and,  being  sworn  to  answer  ques- 
tions as  to  their  eligibility,  accused  stated  he  had  no  ques- 
tions to  ask  them  on  that  subject.  They  were  then  sworn 
in  to  try  the  cause  "in  accordance  with  court  regulations." 
A  motion  for  a  jury  on  the  trial  was  also  made  and  denied. 
The  (459)  amended  complaint  was  then  substituted  in  place 
of  the  original,  to  which  no  objection  was  interposed,  and 
to  it  the  accused  pleaded  "not  guilty,"  and  asked  for  the 
names  of  the  witnesses  for  the  prosecution,  which  were 
furnished  to  him.  The  witnesses  were  then  sworn  and 
examined  and  they  established  beyond  all  possible  doubt 
the  offence  of  murder  charged  against  the  accused,  which 
was  committed  under  circumstances  of  great  atrocity. 

The  court  found  him  guilty  of  murder  and  he  was  sen- 
tenced to  suffer  death  in  such  manner  and  at  such  time  and 
place  as  the  United  States  minister  should  direct.  The  con- 
viction and  sentence  were  concurred  in  by  the  four  asso- 
ciates and  were  approved  by  Mr.  Bingham,  the  minister 
of  the  United  States  in  Japan.  The  minister  transmitted 
the  record  of  the  case  to  the  Department  of  State  for  the 
consideration  of  the  President  and  for  commutation  of  the 
sentence  or  pardon  of  the  prisoner,  if  deemed  advisable. 


46  I  EXTRATERRITORIAL  CASES. 

The  President  subsequently  directed  the  issue  to  the  prisoner 
of  a  pardon  on  condition  that  he  be  imprisoned  at  hard  labor 
for  the  term  of  his  natural  life  in  the  penitentiary  at 
Albany  and  it  was  accepted  by  him  on  that  condition.  His 
sentence  was  accordingly  commuted  and  he  was  removed  to 
the  Albany  penitentiary. 

The  Circuit  Court,  after  hearing  argument  of  counsel  and 
full  consideration  of  the  subject,  made  an  order  on  January 
21,  1891,  denying  the  motion  of  the  prisoner  for  his  dis- 
charge, and  remanding  him  to  the  penitentiary  and  the 
custody  of  its  superintendent  (44  Fed.  Rep.,  185).  From 
that  order  the  case  was  brought  here  on  appeal. 

Mr.  George  W.  Kirchwey,  for  appellant : 

I.  The  crime  having  been  committed  on  board  an  American  vessel, 
altho  such  vessel  was  lying  in  the  harbor  of  Kanagawa,  Japan, 
was  not  committed  within  the  territorial  jurisdiction  of  the  Con- 
sular General  Court  of  Kanagawa,  but  within  that  of  the  United 
States.  It  was  cognizable  only  by  the  domestic  tribunals  of  the 
United  States: 

1.  (460)  The  Consular  General  Court,  being  one  of  special  and 
limited  jurisdiction,  has  no  powers  save  such  as  are  expressly  con- 
ferred by  the  treaty  and  statutes  to  which  it  owes  its  origin.  These 
expressly  confine  its  jurisdiction  to  the  territorial  limits  of  Japan. 

2.  The  domestic  jurisdiction  of  the  modern  State  extends  to  crime 
committed  upon  private  as  well  as  public  vessels  of  the  State  upon 
the  high  seas.  For  the  purposes  of  this  jurisdiction,  a  foreign  port 
is  regarded  as  being  within  the  high  seas,  and  the  ship  as  a  part  of 
the  territory  of  the  State  to  which  she  belongs. 

3.  The  original  and  domestic  jurisdiction  of  the  Federal  courts 
being  adequate  to  deal  with  cases  of  this  kind,  it  will  not  be  pre- 
sumed that  the  Congress  intended  to  set  up  a  novel  jurisdiction  of 
limited  and  inferior  character,  to  supersede  or  compete  with  the 
former. 

4.  The  mode  in  which  the  jurisdiction  of  the  United  States  in 
such  cases  must  be  exercised  is  prescribed  by  statute.  It  is  expressly 
provided  that  all  crimes  committed  on  American  vessels  on  the  high 
seas  shall  be  tried  within  the  United  States. 

II.  If  it  be  claimed  that  the  offence  in  question  was  committed  in 
Japan,  and  not  upon  the  high  seas,  the  consular  jurisdiction  of  the 
United  States  is  wholly  excluded  by  the  fact  that  the  record  does 
not  disclose  facts  conferring  jurisdiction  under  the  treaties  and  laws: 

1.  The  treaties  of  the  United  States  vdth  Japan,  and  the  laws 
passed    by    Congress    in    pursuance    thereof,    expressly    restrict    th<> 


IN  RE  ROSS,  MAY  25,   1891.  47 

jurisdiction  of  the  consular  courts  to  citizens  of  the  United   States. 
It  does  not  appear  that  Ross  was  a  citizen  of  the  United  States. 

2.  The  statutes  ci-eating  the  consular  courts,  as  well  as  the  treaties 
under  which  they  are  instituted,  and  from  which  they  derive  such 
authority  and  jurisdiction  as  they  possess,  expressly  subject  that 
jurisdiction  to  the  laws  of  the  United  States. 

3.  The  claim  that  the  Constitution  has  no  extraterritorial  force 
is  disproved  by  the  existence  and  operation  of  the  consular  court 
itself. 

(461)  III.  The  refusal  to  allow  the  accused  a  trial  by  jury  was 
a  fatal  defect  in  the  jurisdiction  exercised  by  the  court,  and  renders 
its  judgment  absolutely  void: 

1.  The  jury  contemplated  by  the  Constitution  (Art.  III.  §  2,  subd. 
3;  amendments,  Art.  VI),  and  demanded  by  the  appellant,  is  a  com- 
mon law  jury  of  twelve  men. 

2.  There  appears  to  be  nothing  in  the  legislation  of  Congress 
relating  to  the  exercise  of  this  consular  jurisdiction  to  preclude 
compliance  with  the  constitutional  requirement. 

Mr.  Assistant  Attorney-General  Parker,  for  appellee. 
Mr.  Justice  Field,  after  stating  the  case,  delivered  the 
opinion  of  the  court: 

The  Circuit  Court  did  not  refuse  to  discharge  the  peti- 
tioner upon  any  independent  conclusion  as  to  the  validity 
of  the  legislation  of  Congress  establishing  the  consular  tri- 
bunal in  Japan,  and  the  trial  of  Americans  for  offenses 
committed  within  the  territory  of  that  country,  without  the 
indictment  of  a  grand  juiy,  and  without  a  trial  by  a  petit 
jury;  but  placed  its  decision  upon  the  long  and  uniform 
acquiescence  by  the  executive,  administrative,  and  legislative 
departments  of  the  government  in  the  validity  of  the  legis- 
lation. Nor  did  the  Circuit  Court  consider  whether  the 
status  of  the  petitioner  as  a  citizen  of  the  United  States, 
or  as  an  American  within  the  meaning  of  the  treaty  with 
Japan,  could  be  questioned,  while  he  was  a  seaman  of  an 
American  ship,  under  the  protection  of  the  American  flag, 
but  simply  stated  the  view  taken  on  that  subject  by  the 
Minister  to  Japan,  the  State  Department,  and  the  President. 
Said  the  court: 

"During  the  thirty  years  since  the  statutes  conferring  the  judicial 
powers  on  ministers  and  consuls,  which  have  been  referred  to,  were 
enacted,  that  jurisdiction  has  been  freely  exercised.  Citizens  of  the 
United    States    have    been    tried    for    serious    offences    before    these 


48  I  EXTRATERRITORIAL  CASES. 

officers,  without  preliminary  indictment  or  a  common  law  jury  and 
convicted  and  punished.  These  trials  have  been  authorized  by  the 
regulations,  orders  and  decrees  of  ministers,  and  it  (462)  must  be 
presumed  that  the  regulations,  orders  and  decrees  of  ministers  pi-e- 
scribing  the  mode  of  trial  have  been  transmitted  to  the  Secretary 
of  the  (sic)  State,  and  by  him  been  laid  before  Congress  for  revision, 
as  required  by  law.  Unless  the  petitioner  was  not  properly  subject 
to  this  jurisdiction  because  he  was  not  a  citizen  of  the  United  States, 
his  trial  and  sentence  were  in  all  respects  modal  (sic),  as  well  as  sub- 
stantial, regular  and  valid  under  the  laws  of  Congress,  according  to 
the  construction  placed  upon  these  statutes  by  the  acquiescence  of 
the  executive,  administrative  and  legislative  departments  of  the 
government  for  this  long  period  of  time."" 

Under  these  circumstances  the  Circuit  Court  was  of 
opinion  that  it  ought  not  to  adjudge  that  the  sentence 
imposed  upon  the  petitioner  was  utterly  unwarranted  and 
void,  when  the  case  was  one  in  which  his  rights  could  be 
adequately  protected  by  this  court,  and  when  a  decision  by 
the  Circuit  Court  setting  him  at  liberty,  altho  it  might 
be  reversed,  would  be  practically  irrevocable. 

The  Circuit  Court  might  have  found  an  additional  ground 
for  not  calling  in  question  the  legislation  of  Congress,  in 
the  uniform  practice  of  civilized  governments  for  centuries 
to  provide  consular  tribunals  in  other  than  Christian  coun- 
tries, or  to  invest  their  consuls  with  judicial  authority, 
which  is  the  same  thing,  for  the  trial  of  their  own  subjects 
or  citizens  for  offenses  committed  in  those  countries,  as 
well  as  for  the  settlement  of  civil  disputes  between  them; 
and  in  the  uniform  recognition,  down  to  the  time  of  the 
formation  of  our  government,  of  the  fact  that  the  establish- 
ment of  such  tribunals  was  among  the  most  important 
subjects  for  treaty  stipulations.  This  recognition  of  their 
importance  has  continued  ever  since,  tho  the  powers  of 
those  tribunals  are  now  more  carefully  defined  than  for- 
merly.^ 

The  practice  of  European  governments  to  send  officers  to 
reside  in  foreign  countries,  authorized  to  exercise  a  limited 
jurisdiction  over  vessels  and  seamen  of  their  country,  to 
watch  the  interests  of  their  countrymen  and  to  assist  in  ad- 


-  In  re  Ross,  44  Fed.,  185. 

"  Dainese  v.  Hale,  ante,  p.  32. 


IN   RE  ROSS,   MAY    25,    1891.  49 

justing  their  disputes  and  protecting  their  commerce,  goes 
back  to  a  very  early  period,  even  preceding  what  are  termed 
the  Middle  (463)  Ages.  During  those  ages  these  commercial 
magistrates,  generally  designated  as  consuls,  possessed 
to  some  extent  a  representative  character,  sometimes 
discharging  judicial  and  diplomatic  functions.  In  other 
than  Christian  countries  they  were,  by  treaty  stipulations, 
usually  clothed  with  authority  to  hear  complaints  against 
their  countrymen  and  to  sit  in  judgment  upon  them  when 
charged  with  public  offences.  After  the  rise  of  Islamism, 
and  the  spread  of  its  followers  over  eastern  Asia  and  other 
countries  bordering  on  the  Mediterranean,  the  exercise  of 
this  judicial  authority  became  a  matter  of  great  concern. 
The  intense  hostility  of  the  people  of  Moslem  faith  to  all 
other  sects,  and  particularly  to  Christians,  affected  all  their 
intercourse,  and  all  proceedings  had  in  their  tribunals. 
Even  the  rules  of  evidence  adopted  by  them  placed  those  of 
different  faith  on  unequal  grounds  in  any  controversy  with 
them.  For  this  cause,  and  by  reason  of  the  barbarous  and 
cruel  punishments  inflicted  in  those  countries,  and  the  fre- 
quent use  of  torture  to  enforce  confession  from  parties 
accused,  it  was  a  matter  of  deep  interest  to  Christian  govern- 
ments to  withdraw  the  trial  of  their  subjects,  when  charged 
with  the  commission  of  a  public  offence,  from  the  arbitrary 
and  despotic  action  of  the  local  officials.  Treaties  confer- 
ring such  jurisdiction  upon  these  consuls  were  essential  to 
the  peaceful  residence  of  Christians  within  those  countries 
and  the  successful  prosecution  of  commerce  with  their 
people. 

The  treaty-making  power  vested  in  our  government  ex- 
tends to  all  proper  subjects  of  negotiation  with  foreign 
governments.  It  can,  equally  with  any  of  the  former  or 
present  governments  of  Europe,  make  treaties  providing  for 
the  exercise  of  judicial  authority  in  other  countries  by  its 
officers  appointed  to  reside  therein. 

We  do  not  understand  that  any  question  is  made  by  coun- 
sel as  to  its  power  in  this  respect.  His  objection  is  to  the 
legislation  by  which  such  treaties  are  carried  out,  contend- 
ing that,  so  far  as  crimes  of  a  felonious  character  are  con- 

14008   O.   W. 4 


50  I  EXTRATERRITORIAL  CASES. 

cerned,  the  same  protection  and  guarantee  against  an  undue 
accusation  or  an  unfair  trial,  secured  by  the  Constitution 
to  citizens  of  the  United  States  at  home,  should  be  enjoyed 
by  them  abroad. 

(464)  In  none  of  the  laws  which  have  been  passed  by 
Congress  to  give  effect  to  treaties  of  the  kind  has  there 
been  any  attempt  to  require  indictment  by  a  grand  jury 
before  one  can  be  called  upon  to  answer  for  a  public  offence 
of  that  grade  committed  in  those  countries,  or  to  secure  a 
jury  on  the  trial  of  the  offence.  Yet  the  laws  on  that 
subject  have  been  passed  without  objection  to  their  con- 
stitutionality. Indeed,  objection  on  that  ground  was  never 
raised  in  any  quarter,  so  far  as  we  are  informed,  until  a 
recent  period. 

It  is  now,  however,  earnestly  pressed  by  counsel  for  the 
petitioner,  but  we  do  not  think  it  tenable.  By  the  Con- 
stitution a  government  is  ordained  and  established  "for  the 
United  States  of  America,"  and  not  for  countries  outside 
of  their  limits.  The  guarantees  it  affords  against  accusa- 
tion of  capital  or  infamous  crimes,  except  by  indictment 
or  presentment  by  a  grand  jury,  and  for  an  impartial  trial 
by  a  jury  when  thus  accused,  apply  only  to  citizens  and 
others  within  the  United  States,  or  who  are  brought  there 
for  trial  for  alleged  offences  committed  elsewhere,  and  not 
to  residents  or  temporary  sojourners  abroad.'  The  Con- 
stitution can  have  no  operation  in  another  country.^  When 
therefore,  the  representatives  or  officers  of  our  government 
are  permitted  to  exercise  authority  of  any  kind  in  another 
country,  it  must  be  on  such  conditions  as  the  two  countries 
may  agree,  the  laws  of  neither  one  being  obligatory  upon 
the  other.  The  deck  of  a  private  American  vessel,  it  is  true, 
is  considered  for  many  purposes  constructively  as  territory 
of  the  United  States,  yet  persons  on  board  of  such  vessels, 
whether  officers,  sailors,  or  passengers,  cannot  invoke  the 
protection  of  the  provisions  referred  to  until  brought 
within   the   actual   territorial    boundaries    of   the    United 

'  Cook  V.  United  States,  138  U.  S.,  157,  181. 

'Compare  Dorr  v.  U.  S.,  195  U.  S.,  138,  49  L.  ed.,  128;  Downes 
V.  Bidwell,  182  U.  S.,  244,  45  L.  ed.,  1088.     Ed. 


IN    RE   ROSS,    MAY    25,    1891.  51 

States.  And,  besides,  their  enforcement  abroad  in  numer- 
ous places,  where  it  would  be  highly  important  to  have 
consuls  invested  with  judicial  authority,  would  be  imprac- 
ticable from  the  impossibility  of  obtaining  a  competent 
grand  or  petit  jury.  The  requirement  of  such  a  body  to 
accuse  and  to  try  an  offender  would,  in  a  majority  of  cases, 
cause  an  abandonment  of  all  prosecution.  The  framers  of 
the  Constitution,  who  were  fully  (465)  aware  of  the  neces- 
sity of  having  judicial  authority  exercised  by  our  consuls 
in  non-Christian  countries,  if  commercial  intercourse  was 
to  be  had  with  their  people,  never  could  have  supposed 
that  all  the  guarantees  in  the  administration  of  the  law 
upon  criminals  at  home  were  to  be  transferred  to  such 
consular  establishments,  and  applied  before  an  American 
who  had  committed  a  felony  there  could  be  accused  and 
tried.  They  must  have'  known  that  such  a  requirement 
would  defeat  the  main  purpose  of  investing  the  consul  with 
judicial  authority.  While,  therefore,  in  one  aspect  the 
American  accused  of  crime  committed  in  those  countries 
is  deprived  of  the  guarantees  of  the  Constitution  against 
unjust  accusation  and  a  partial  trial,  yet  in  another  aspect 
he  is  the  gainer,  in  being  withdrawn  from  the  procedure  of 
their  tribunals,  often  arbitrary  and  oppressive,  and  some- 
times accompanied  with  extreme  cruelty  and  torture.*^ 

We  turn  now  to  the  treaties  between  Japan  and  the  United 
States.  The  treaty  of  June  17,  1857,  executed  by  the  consul 
general  of  the  United  States  and  the  governors  of  Simoda 
is  the  one  which  first  conceded  to  the  American  consul  in 
Japan  authority  to  try  Americans  committing  offences  in 
that  country.     Article  IV  of  that  treaty  is  as  follows : 

"Art.  IV.  Americans  committing  offences  in  Japan  shall  be  tried 
by  the  American  consul  general  or  consul  and  shall  be  punished 
according  to  American  laws.     Japanese  committing  offences  against 

"  Letter  of  Mr.  Gushing  to  Mr.  Calhoun  of  September  29,  1844, 
accompanying  President's  message  communicating  abstract  of  treaty 
with  China,  Senate  Doc,  58,  28th  Congress,  2d  Sess. ;  Letter  on  Judi- 
cial Exterritorial  Rights  by  Secretary  Frelinghuysen  to  Chaii'man  of 
Senate  Committee  on  Foreign  Relations  of  April  29,  1882,  Senate 
Doc,  89,  47th  Cong.,  1st  Sess.;  Phillimore  on  Int.  Law,  vol.  2,  part 
7;  Halleck  on  Int.  Law,  c.  41. 


52  I  EXTRATERRITORIAL  CASES. 

Americans  shall  be  tried  by  the  Japanese  authorities  and  punished 
according  to  Japanese  laws."  ' 

The  treaty  with  Japan  of  July  29,  1858,  in  some  partic- 
ulars changes  the  phraseology  of  the  concession  of  judicial 
authority  (466)  to  the  American  consul  in  Japan,  but,  as 
we  shall  see  subsequently,  without  revocation  of  the  conces- 
sion itself.     Its  sixth  article  is  as  follows: 

"Art.  VI.  Americans  committing  offences  against  Japanese  shall 
be  tried  in  American  consular  courts  and  when  guilty  shall  be 
punished  according  to  American  law.  Japanese  committing  offences 
against  Americans  shall  be  tried  by  the  Japanese  authorities  and 
punished  according  to  Japanese  law.  The  consular  courts  shall  be 
open  to  Japanese  creditors  to  enable  them  to  recover  their  just  claims 
against  American  citizens  and  the  Japanese  courts  shall  in  like  man- 
ner be  open  to  American  citizens  for  the  recovery  of  their  just  claims 
against  Japanese.'' " 

As  will  be  seen,  the  language  of  the  fourth  article  of  the 
treaty  of  1857  is  that  "Americans  committing  offences  in 
Japan  shall  be  tried,"  etc. ;  while  the  language  of  the  sixth 
article  of  the  treaty  of  1858  is  that  "Americans  committing 
offences  against  Japanese  shall  be  tried,"  etc.  Offences 
committed  in  Japan  and  offences  committed  against  Jap- 
anese are  not  necessarily  identical  in  meaning.  The  latter 
standing  by  itself  would  require  a  more  restricted  construc- 
tion. But  the  twelfth  article  of  that  treaty  obviates  that. 
It  is  as  follows : 

"Art.  XII.  Such  of  the  provisions  of  the  treaty  made  by  Com- 
modore Perry  and  signed  at  Kanagawa  on  the  31st  of  March,  1854, 
as  conflict  with  the  provisions  of  this  treaty  are  hereby  revoked; 
and  as  all  the  provisions  of  a  convention  executed  by  the  consul 
general  of  the  United  States  and  the  governors  of  Simoda,  on  the 
17th  of  June,  1857,  are  incorporated  in  this  treaty,  that  convention 
is  also  revoked." 

It  will  thus  be  perceived  that  the  revocation  of  the  treaty 
of  1857  was  made  upon  the  assumption  and  declaration  that 
all  its  provisions  were  incorporated  into  the  treaty  of  1858. 
The  revocation  must,  therefore,  be  held  to  be  limited  to 
those  provisions  and  those  only  which  are  thus  incorporated, 
that  treaty  still  remaining  in  force  as  to  the  unincorporated 


11  U.  S.  Stats,  at  Large,  723. 

12  U.  S.  Stats,  at  Large,  1056. 


IN   RE  ROSS,   MAY    25,    1891.  53 

provisions.  This  has  been  the  practical  construction  given 
to  the  alleged  revocation  by  the  authorities  of  both  coun- 
tries— a  (467)  construction  which,  in  view  of  the  erroneous 
statement  as  to  the  incorporation  into  the  new  treaty  of  all 
the  provisions  of  the  former  one,  is  reasonable  and  just. 

Our  government  has  always  treated  Article  IV  of  the 
treaty  of  1857  as  continuing  in  force,  and  it  is  published  as 
such  in  the  United  States  Consular  Regulations,^  issued  in 
1888.  Its  official  interpretation  is  found  in  Article  71  of 
those  regulations,  which  declares  that  "consuls  have  exclu- 
sive jurisdiction  over  crimes  and  offences  committed  by 
citizens  of  the  United  States  in  Japan."  Mr.  Bingham,  our 
minister  to  that  country  for  several  years  after  the  treaty 
of  1858,  always  assumed  the  incorporation  into  that  treaty 
of  all  the  provisions  of  the  treaty  of  1857,  or  that  they 
were  saved  by  it.  When  the  prisoner  reached  San  Fran- 
cisco, on  his  way  from  Japan  to  Albany,  he  applied  to  the 
Circuit  Court  of  the  United  States  for  a  writ  of  habeas 
corpus,  and  cited  the  sixth  article  of  the  treaty  of  1858, 
insisting  that  it  only  provided  for  the  trial  of  Americans  by 
American  consular  courts  in  Japan  for  offences  committed 
against  Japanese,  and  therefore  he  could  not  be  held  to 
answer  for  the  murder  of  the  second  officer  of  the  American 
ship  Bullion,  when  in  Japanese  waters,  because  he  was  not  a 
Japanese  subject.  In  a  communication  made  under  date  of 
June  8,  1881,  by  the  minister  to  the  Secretary  of  State, 
reference  is  made  to  this  position,  and  the  following  lan- 
guage is  used: 

"Nothing,  in  my  opinion,  could  more  strongly  testify  to  the  utter 
weakness  of  the  claim  made  for  Ross  against  the  government  than 
this  attempt  to  limit  the  jurisdiction  of  our  consuls  in  Japan  over 
Americans  guilty  of  crimes  by  them  committed  within  this  empire, 
to  such  crimes  only  as  they  should  commit  upon  the  person  of 
Japanese  subjects.  According  to  this  logic,  Americans  may  in  Japan 
murder  each  other  and  the  citizens  or  subjects  of  all  lands  save  the 
subjects  of  Japan  with  impunity — as  it  is  admitted  by  this  government 
that  it  cannot  try  an  American  for  any  offence  whatever — and  it  must 
also  be  conceded  that  the  tribunals  of  no  other  government  than  our 
own  can  try  Americans  for  crimes  by  them  committed  within  this  em- 

°  Appendix  No.   1,   p.   313. 


54  I  EXTRATERRITORIAL  CASES. 

pire.  In  giving  my  reasons  to  the  department  for  sustaining  the 
jurisdiction  of  the  United  States  in  this  case,  and  for  approving 
as  I  did  the  conviction  of  Ross,  in  which  the  consul  general  and 
the  four  associates  who  sat  with  him  had  concurred,  1  cited  Article 
IV  of  our  convention  of  1857  with  Japan,  to  wit:  'That  Americans 
committing  offences  in  Japan  shall  be  tried  by  the  American  consul 
general  or  consul,  and  shall  be  punished  according  to  American  law.' 
This  provision  of  the  convention  of  1857  and  all  other  provisions 
thereof  were  saved  and  incorporated  in  our  treaty  of  1858  with 
Japan,  Article  XII,  [quoted  above.]  You  will  observe  that  Mr. 
Townsend  Harris  was  the  consul  general  of  the  United  States  who 
negotiated  both  of  these  treaties  with  Japan,  and  that  the  treaty 
of  1858  was  ratified  April  12,  1860,  and  that  thereafter,  to  wit, 
June  22,  1860,  Congress  passed  the  act  to  carry  into  effect  this  treaty 
vdth  Japan,  and  provided  that  the  minister  and  consuls  of  the  United 
States  in  Japan  be  'fully  empowered  to  arraign  and  try  in  the 
manner  (in  said  statute  provided)  all  citizens  of  the  United  States 
charged  with  offences  against  law  committed'  (by  them  in  Japan)  ; 
[sec.  4084,  Rev.  Stat.]  ;  and  also  by  section  4086  provided  that  the 
jurisdiction  in  both  civil  and  criminal  matters  in  Japan  shall  'in 
all  cases  be  exercised  and  enforced  in  conformity  with  the  laws  of 
the  United  States,  which  so  far  as  necessary  to  execute  such  treaty 
are  extended  over  all  citizens  of  the  United  States  therein,  and  over 
all  others  to  the  extent  the  terms  of  the  treaty  justify  or  require.' 
Here  was  the  construction  above  stated  by  me  asserted  by  the  same 
Senate  which  ratified  the  treaty,  and  by  the  same  President  who 
approved  both  the  treaty  and  the  act  of  Congress.  The  President 
and  the  department  have  always  construed  the  treaty  of  1858  as 
carrying  with  it  and  incorporating  therein  the  fourth  article  and 
all  other  provisions  of  the  convention  of  1857." 

The  legislation  of  Congress  to  carry  into  effect  the  treaty 
with  Japan  is  found  in  the  Revised  Statutes,  in  sections 
most  of  which  apply  equally  to  treaties  with  China,  Siam, 
Egypt  and  Madagascar  (sees.  4083-4091).  Confining  our- 
selves to  the  treaty  with  Japan  only,  we  find  that  the 
legislation  secures  a  regular  and  fair  trial  to  Americans 
committing  offences  within  that  empire. 

(469)  It  enacts  that  the  minister  and  consuls  of  the  United 
States,  appointed  to  reside  there,  shall,  in  addition  to  other 
powers  and  duties  imposed  upon  them  respectively,  be  in- 
vested with  the  judicial  authority  therein  described,  which 
shall  appertain  to  their  respective  offices  and  be  a  part  of 
the  duties  belonging  thereto,  so  far  as  the  same  is  allowed  by 
treaty;   and   empowers  them   to  arraign   and  try,    in   the 


IN  RE  ROSS,   MAY    25,    1891.  55 

manner  therein  provided,  all  citizens  of  the  United  States 
charged  with  offences  against  law  committed  in  that  coun- 
try, and  to  sentence  such  offenders  as  therein  provided,  and 
to  issue  all  suitable  and  necessary  process  to  carry  their 
authority  into  execution.  It  declares  that  their  jurisdiction 
in  both  criminal  and  civil  matters  shall  in  all  cases  be 
exercised  and  enforced  in  conformity  with  the  laws  of  the 
United  States,  which,  so  far  as  necessary  to  execute  the 
treaty  and  suitable  to  carry  it  into  effect,  are  extended  over 
all  citizens  of  the  United  States  in  Japan,  and  over  all  others 
there  to  the  extent  that  the  terms  of  the  treaty  justify  or 
require.  It  also  provides  that  where  such  laws  are  not 
adapted  to  the  object,  or  are  deficient  in  the  provisions 
necessary  to  furnish  suitable  remedies,  the  common  law  and 
the  law  of  equity  and  admiralty  shall  be  extended  in  like 
manner  over  such  citizens  and  others;  and  that  if  neither 
the  common  law,  nor  the  law  of  equity,  or  admiralty,  nor 
the  statutes  of  the  United  States,  furnish  appropriate  and 
sufficient  remedies,  the  minister  shall,  by  decrees  and  reg- 
ulations, which  shall  have  the  force  of  law,  supply  such 
defects  and  deficiencies.  Each  of  the  consuls  is  authorized, 
upon  facts  within  his  own  knowledge,  or  which  he  has  good 
reason  to  believe  true,  or  upon  complaint  made  or  informa- 
tion filed  in  writing  and  authenticated  in  such  way  as  shall 
be  prescribed  by  the  minister,  to  issue  his  warrant  for  the 
arrest  of  any  citizen  of  the  United  States  charged  with 
committing  in  the  country  an  offence  against  law;  and  to 
arraign  and  try  any  such  offender;  and  to  sentence  him  to 
punishment  in  the  manner  therein  prescribed. 

The  legislation  also  declares  that  insurrection  or  rebellion 
against  the  government,  with  intent  to  subvert  the  same, 
and  murder,  shall  be  punishable  with  death,  but  that  no 
person  (470)  shall  be  convicted  thereof  unless  the  consul 
and  his  associates  in  the  trial  all  concur  in  the  opinion,  and 
the  minister  approves  of  the  conviction.  It  also  provides 
that  whenever  in  any  case  the  consul  is  of  opinion  that,  by 
reason  of  the  legal  questions  which  may  arise  therein,  assist- 
ance will  be  useful  to  him,  or  that  a  severer  punishment 
than  previously  specified  in  certain  cases  will  be  required, 


56  I  EXTRATERRITORIAL  CASES. 

he  shall  summon  to  sit  with  him  on  the  trial  one  or  more 
citizens  of  the  United  States,  not  exceeding  four,  and  in 
capital  cases  not  less  than  four,  who  shall  be  taken  by  lot 
from  a  list  which  has  been  previously  submitted  to  and 
approved  by  the  minister,  and  shall  be  persons  of  good 
repute  and  competent  for  the  duty. 

The  jurisdiction  of  the  consular  tribunal,  as  is  thus  seen, 
is  to  be  exercised  and  enforced  in  accordance  with  the  laws 
of  the  United  States ;  and,  of  course,  in  pursuance  of  them 
the  accused  will  have  an  opportunity  of  examining  the  com- 
plaint against  him,  or  will  be  presented  with  a  copy  stating 
the  offence  he  has  committed,  will  be  entitled  to  be  confronted 
with  the  witnesses  against  him  and  to  cross-examine  them, 
and  to  have  the  benefit  of  counsel ;  and,  indeed,  will  have  the 
benefit  of  all  the  provisions  necessary  to  secure  a  fair  trial 
before  the  consul  and  his  associates.  The  only  complaint  of 
this  legislation  made  by  counsel  is  that,  in  directing  the  trial 
to  be  had  before  the  consul  and  associates  summoned  to  sit 
with  him,  it  does  not  require  a  previous  presentment  or 
indictment  by  a  grand  jury,  and  does  not  give  to  the  accused 
a  petit  jury.  The  want  of  such  clauses,  as  affecting  the 
validity  of  the  legislation,  we  have  already  considered.  It 
is  not  pretended  that  the  prisoner  did  not  have,  in  otner 
respects,  a  fair  trial  in  the  consular  court. 

It  is  further  objected  to  the  proceedings  in  the  consular 
court  that  the  offence  with  which  the  petitioner  was  charged, 
having  been  committed  on  board  of  a  vessel  of  the  United 
States  in  Japanese  waters,  was  not  triable  before  the  con- 
sular court;  and  that  the  petitioner,  being  a  subject  of  Great 
Britain,  was  not  within  the  jurisdiction  of  that  court. 
These  objections  we  will  now  proceed  to  consider. 

The  argument  presented  in  support  of  the  first  of  these 
(471)  positions  is  briefly  this.  Congress  has  provided  for 
the  punishment  of  murder  committed  upon  the  high  seas, 
or  any  arm  or  bay  of  the  sea  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  and  out  of  the 
jurisdiction  of  any  particular  State;  and  has  provided  that 
the  trial  of  all  offences  committed  upon  the  high  seas,  out 
of  the  jurisdiction  of  any  particular  State,  shall  be  in  the 


IN  RE  ROSS,   MAY   25.    1891.  57 

district  where  the  offender  is  found  or  into  which  he  is 
first  brought.  The  term  "high  seas"  includes  waters  on  the 
sea  coast  without  the  boundaries  of  low- water  mark;  and 
the  waters  of  the  port  of  Yokohama  constitute,  within  the 
meaning  of  the  statute,  high  seas. 

Therefore  it  is  contended  that,  although  the  ship  Bullion 
was  at  the  time  lying  in  those  waters,  the  offence  for  which 
the  appellant  was  tried  and  convicted  was  committed  on  the 
high  seas  and  within  the  jurisdiction  of  the  domestic  tri- 
bunals of  the  United  States,  and  is  not  punishable  elsewhere. 
In  support  of  this  position  it  is  assumed  that  the  jurisdic- 
tion of  the  consular  court  is  limited  to  offences  committed 
on  land,  within  the  territory  of  Japan,  to  the  exclusion  of 
offences  committed  on  waters  within  that  territory. 

There  is,  as  it  seems  to  us,  an  obvious  answer  to  this 
argument.  The  jurisdiction  to  try  offences  committed  on 
the  high  seas  in  the  district  where  the  offender  may  be 
found,  or  into  which  he  may  be  first  brought,  is  not  ex- 
clusive of  the  jurisdiction  of  the  consular  tribunal  to  try 
a  similar  offence  when  committed  in  a  port  of  a  foreign 
country  in  which  that  tribunal  is  established,  and  the 
offender  is  not  taken  to  the  United  States,  There  is  no 
law  of  Congress  compelling  the  master  of  a  vessel  to  carry  or 
transport  him  to  any  home  port  when  he  can  be  turned  over 
to  a  consular  court  having  jurisdiction  of  similar  offences 
committed  in  the  foreign  country,^-  The  provisions  confer- 
ring jurisdiction  in  capital  cases  upon  the  consuls  in  Japan, 
when  the  offence  is  committed  in  that  country,  are  embodied 
in  the  Revised  Statutes,  with  the  provisions  as  to  the 
jurisdiction  of  domestic  tribunals  over  such  offences  com- 
mitted on  the  high  seas ;  and  those  statutes  were  reenacted 
together,  and,  as  reenacted,  went  into  operation  at  the  same 
time.  To  both  effect  must  (472)  be  given  in  proper  cases, 
where  they  are  applicable.  We  do  not  adopt  the  limitation 
stated  by  counsel  to  the  jurisdiction  of  the  consular  tribunal, 
that  it  extends  only  to  offences  committed  on  land.  Neither 
the  treaty  nor  the  Revised  Statutes  to  carry  them  into  effect 
contain  any  such  limitation.     The  latter  speak  of  offences 

"  Op.  Attys.  Gen.,  VII,  722. 


58  I  EXTRATERRITORIAL  CASES. 

committed  in  the  country  of  Japan — meaning  within  the  ter- 
ritorial jurisdiction  of  that  country — which  includes  its 
ports  and  na\igable  waters  as  well  as  its  lands. 

The  position  that  the  petitioner,  being  a  subject  of  Great 
Britain,  was  not  within  the  jurisdiction  of  the  consular 
court,  is  more  plausible,  but  admits,  we  think,  of  a  sufficient 
answer.  The  national  character  of  the  petitioner,  for  all 
the  purposes  of  the  consular  jurisdiction,  was  determinable 
by  his  enlistment  as  one  of  the  crew  of  the  American  ship 
Bullion.  By  such  enlistment  he  becomes  an  American 
seaman — one  of  an  American  crew  on  board  of  an  American 
vessel — and  as  such  entitled  to  the  protection  and  benefits  of 
all  the  laws  passed  by  Congress  on  behalf  of  American  sea- 
men, and  subject  to  all  their  obligations  and  liabilities. 
Altho  his  relations  to  the  British  government  are  not  so 
changed  that,  after  the  expiration  of  his  enlistment  on 
board  of  the  American  ship,  that  government  may  not  en- 
force his  obligation  of  allegiance,  and  he  on  the  other  hand 
may  not  be  entitled  to  invoke  its  protection  as  a  British 
subject,  that  relation  was  changed  during  his  service  of 
seaman  on  board  of  the  American  ship  under  his  enlistment. 
He  could  then  insist  upon  treatment  as  an  American  seaman, 
and  invoke  for  his  protection  all  the  power  of  the  United 
States  which  could  be  called  into  exercise  for  the  protection 
of  seamen  who  were  native  born.  He  owes  for  that  time 
to  the  country  to  which  the  ship  on  which  he  is  serving 
belongs,  a  temporary  allegiance,  and  must  be  held  to  all 
its  responsibilities.  The  question  has  been  treated  more  as 
a  political  one  for  diplomatic  adjustment,  than  as  a  legal 
one  to  be  determined  by  the  judicial  tribunals,  and  has  been 
the  subject  of  correspondence  between  our  government  and 
that  of  Great  Britain. 

The  position  taken  by  our  government  is  expressed  in  a 
(473)  communication  from  the  Secretary  of  State,  to  the 
British  government,  under  date  of  June  16,  1881.  It  was  the 
assertion  of  a  principle  which  the  Secretary  insisted 

"is  in  entire  conformity  with  the  principles  of  English  law  as  applied 
to  a  mercantile  service  almost  identical  with  our  own  in  its  organiza- 
tion and  regulation.  That  principle  is  that,  when  a  foreigner  enters 
the  mercantile  marine  of  any  nation  and  becomes  one  of  the  crew 


IN   RE  ROSS,   MAY   25,    1891.  59 

of  a  vessel  having  undoubtedly  a  national  character,  he  assumes  a 
temporary  allegiance  to  the  flag  under  which  he  serves,  and  in 
return  for  the  protection  afforded  him  becomes  subject  to  the  laws  by 
which  that  nation  in  the  exercise  of  an  unquestioned  authority  governs 
its  vessels  and  seamen.  If,  therefore,"  he  continued,  "the  govern- 
ment of  the  United  States  has  by  treaty  stipulation  with  Japan 
acquired  the  privilege  of  administering  its  own  laws  upon  its  orwn 
vessels  and  in  relation  to  its  own  seamen  in  Japanese  territory, 
then  every  American  vessel  and  every  seaman  of  its  crew  are 
subject  to  the  jurisdiction  which  by  such  treaty  has  been  transferred 
to  the  government  of  the  United  States. 

"If  Ross  had  been  a  passenger  on  board  of  the  Bullion,  or  if, 
residing  in  Yokohama,  he  had  come  on  board  temporarily  and  had 
then  committed  the  murder,  the  question  of  jurisdiction  would  have 
been  very  different.  But,  as  it  was,  he  was  part  of  the  crew,  a 
duly  enrolled  seaman  under  American  laws,  enjoying  the  protection  of 
this  government  to  such  an  extent  that  he  could  have  been  protected 
from  arrest  by  the  British  authorities;  and  his  subjection  to  the  laws 
of  the  United  States  cannot  be  avoided  just  at  the  moment  that  it 
suits  his  convenience  to  allege  foreign  citizenship.  The  law  which 
he  violated  was  the  law  made  by  the  United  States  for  the  govern- 
ment of  United  States  vessels;  the  person  murdered  was  one  of  his 
own  superior  officers  whom  he  had  bound  himself  to  respect  and 
obey  and  it  is  difficult  to  see  by  what  authority  the  British  govern- 
ment can  assume  the  duty  or  claim  the  right  to  vindicate  that  law 
or  protect  that  officer. 

"The  mercantile  service  is  certainly  a  national  service,  although 
not  quite  in  the  sense  in  which  that  term  would  be  applied  to  the 
national  navy.  It  is  an  organized  service  governed  (474)  by  a  special 
and  complex  system  of  law,  administered  by  national  officers,  such 
as  collectors,  harbormasters,  shipping  masters  and  consuls,  appointed 
by  national  authority.  This  system  of  law  attaches  to  the  vessel  and 
crew  when  they  leave  a  national  port  and  accompanies  them  round 
the  globe,  regulating  their  lives,  protecting  their  persons  and  punish- 
ing their  offences.  The  sailor,  like  the  soldier  during  his  enlistment, 
knows  no  other  allegiance  than  to  the  country  under  whose  flag  he 
serves.  This  law  may  be  suspended  while  he  is  in  the  ports  of  a 
foreign  nation,  but  where  such  foreign  nation  grants  to  the  country 
which  he  serves  the  power  to  administer  its  own  laws  in  such  foreign 
territory,  then  the  law  under  which  he  enlisted  again  becomes 
supreme." 

The  Secretary  concluded  his  communication  with  the 
following  expression  of  the  determination  of  our  govern- 
ment: 

"So  impressed  is  this  government  with  the  importance  and  pro- 
priety of  these  views,  that  while  it  will   receive  with  the  most  re- 


60  I  EXTRATERRITORIAL  CASES. 

spectful  consideration  the  expression  of  any  different  conviction 
which  Her  Britannic  Majesty's  government  may  entertain,  it  will 
yet  feel  bound  to  instruct  its  consular  and  diplomatic  officers  in 
the  East,  that  in  China  and  Japan  the  judicial  authority  of  the 
consuls  of  the  United  States  will  be  considered  as  extending  over 
all  persons  duly  shipped  and  enrolled  upon  the  articles  of  any 
merchant  vessel  of  the  United  States,  whatever  be  the  nationality 
of  such  person.  And  all  offences  which  would  be  justiciable  by 
the  consular  courts  of  the  United  States,  where  the  persons  so 
offending  are  native  born  or  naturalized  citizens  of  the  United 
States,  employed  in  the  merchant  service  thereof,  are  equally  justici- 
able by  the  same  consular  courts  in  the  case  of  seamen  of  foreign 
nationality." 

The  determination  thus  expressed  was  afterwards  carried 
out  by  incorporating  the  doctrine  into  the  permanent  reg- 
ulations of  the  department  for  the  guide  of  the  consuls  of 
this  country.^^ 

The  views  thus  forcibly  expressed  present  in  our  judg- 
ment the  true  status  of  the  prisoner  while  an  enlisted 
seaman  on  the  American  vessel,  and  give  effect  to  the 
purpose  of  the  treaty  (475)  and  the  legislation  of  Congress. 
The  treaty  uses  the  term  "Americans"  in  speaking  of  those 
who  may  be  brought  within  the  jurisdiction  of  the  consular 
court  for  offences  committed  in  Japan.  The  statute  de- 
signates them  as  "citizens  of  the  United  States,"  and  yet 
extends  the  laws  of  the  United  States,  so  far  as  they  may 
be  necessary  to  execute  the  treaty  and  are  suitable  to  carry 
the  same  into  effect,  not  only  over  all  citizens  of  the  United 
States  in  Japan,  but  also  over  "all.  others  to  the  extent  that 
the  terms  of  the  treaty  justify  or  require." 

Reading  the  treaty  and  statute  together  in  view  of  the 
purpose  designed  to  be  accomplished,  we  are  satisfied  that  it 
was  intended  by  them  to  bring  within  our  laws  all  who  are 
citizens:  and  also  all  who,  tho  not  strictly  citizens,  are 
by  their  service  equally  entitled  to  the  care  and  protection 
of  the  government.  It  is  a  canon  of  interpretation  to  so 
construe  a  law  or  a  treaty  as  to  give  effect  to  the  object 
designed,  and  for  that  purpose  all  of  its  provisions  must  be 
examined  in  the  light  of  attendant  and  surrounding  cir- 
cumstances.    To    some    terms    and    expressions    a    literal 


''126.    Regulation. 


IN  RE  ROSS,  MAY   25,    1891.  61 

meaning  will  be  given,  and  to  others  a  larger  and  more 
extended  one.  The  reports  of  adjudged  cases  and  approved 
legal  treatises  are  full  of  illustrations  of  the  application  of 
this  rule.  The  inquiry  in  all  such  cases  is  as  to  what  was 
intended  in  the  law  by  the  legislature,  and  in  the  treaty 
by  the  contracting  parties. 

In  a  case  '-  which  was  before  this  court  at  the  last 
term,  it  was  held  that  the  District  of  Columbia,  as  a  political 
community,  is  one  of  "the  States  of  the  Union,"  within  the 
meaning  of  that  term  as  used  in  the  consular  convention  of 
1853  with  France ;  such  construction  being  necessary  to  give 
consistency  to  the  provisions  of  the  convention,  and  not 
defeat  the  consideration  given  by  France  for  her  concession 
of  certain  rights  to  citizens  of  the  United  States.  And  in 
the  present  case,  to  carry  out  the  intention  of  the  treaty 
and  statute  in  question,  they  will  be  construed  to  apply  to 
all  parties  who  are  by  public  law,  or  the  law  of  the  country, 
entitled  to  be  treated  for  the  time,  from  their  employment 
and  service,  as  citizens.  There  are  many  adjudications  to 
the  effect  that  such  character  will  be  ascribed  to  parties 
and  they  (476)  be  held  liable  to  all  its  consequences,  and 
entitled  to  all  its  benefits,  on  other  grounds  than  birth  or 
naturalization. 

A  statute  of  Henry  VIII  enacted  that  if  anybody  should 
rob  or  take  "the  goods  of  the  king's  subjects  within  this 
realm,"  and  be  found  guilty,  the  party  robbed  should  have 
restitution  of  the  goods.  Of  this  statute  Sir  Matthew  Hale 
said  that  "though  it  speaks  of  the  king's  subjects,  it  extends 
to  aliens  robbed ;  for  though  they  are  not  the  king's  natural 
born  subjects,  they  are  the  king's  subjects  when  in  England, 
by  local  allegiance."  ^-^ 

In  another  case  ^^  which  is  in  point  certain  parties  were 
indicted  in  the  Circuit  Court  of  the  United  States  for  the 
District  of  Massachusetts  and  convicted  of  murder  on  the 
high  seas.  It  appeared  that  a  vessel,  apparently  Spanish, 
was  captured  by  privateers  from  Buenos  Ayres,  and  a  prize 

"  De  Geofroy  v.  Riggs,  133  U.  S.,  258,  33  L.  ed.,  642. 

''  1  Hale's  Pleas  of  the  Crown,  p.  542. 

"  United  States  v.  Holmes,  5  Wheat,  412,  5  L.  ed.,  122. 


62  I  EXTRATERRITORIAL  CASES. 

crew  was  put  on  board,  of  whom  the  prisoners  were  a  part. 
One  of  them  was  a  citizen  of  the  United  States  and  the 
others  were  foreigners.  The  crime  was  committed  by 
drowning  the  person  whose  death  was  charged,  by  the 
prisoners  driving  or  throwing  him  overboard.  On  motion 
for  a  new  trial  certain  questions  arose  on  which  the  judges 
were  divided  in  opinion.  One  of  these  was,  whether  it 
made  any  difference  as  to  the  point  of  jurisdiction,  whether 
the  prisoners  or  any  of  them  were  citizens  of  the  United 
States,  or  that  the  offence  was  committed,  not  on  board  of 
any  vessel,  but  on  the  high  seas.  The  court  said  that  the 
question  contained  two  propositions ;  one  as  to  the  national 
character  of  the  offender  and  the  person  against  whom  the 
offence  was  committed;  and,  second,  as  to  the  place  where 
it  was  committed.  In  respect  to  the  first  the  court  was  of 
the  opinion  that  it  made  no  difference  whether  the  offender 
was  a  citizen  of  the  United  States  or  not ;  adding 

"if  it  (the  offence)  be  committed  on  board  of  a  foreign  vessel  by 
a  citizen  of  the  United  States,  or  on  board  of  a  vessel  of  the  United 
States  by  a  foreigner,  the  offender  is  to  be  considered,  pro  hcic  vice, 
and  in  respect  to  this  subject,  as  belonging  to  the  nation  under  whose 
flag  he  sails."     *     *     * 

One  James  Anderson,  an  American  citizen,  was  in- 
dicted at  the  Central  Criminal  Court  in  England  for 
murder  on  board  a  vessel  belonging  to  the  port  of 
Yarmouth,  in  Nova  Scotia;  she  was  registered  in  London, 
and  was  sailing  under  the  British  flag.  At  the  time  the 
offence  was  committed  the  vessel  was  in  the  river  Garonne, 
within  the  boundaries  of  the  French  Empire,  on  her  way 
up  to  Bordeaux,  which  city  is,  by  the  course  of  the  river, 
about  ninety  miles  from  the  open  sea.  The  vessel  had  pro- 
ceeded about  half  way  up  the  river,  and  was  at  the  time 
of  the  offence  about  300  yards  from  the  nearest  shore,  the 
river  at  that  place  being  about  half  a  mile  wide.  The  tide 
flows  up  to  the  place  and  beyond  it.  The  prisoner  was 
convicted,  and  the  case  was  reserved  for  the  opinion  of  the 
court.  It  was  contended  '^  on  behalf  of  the  prisoner  that  the 
court  had  no  jurisdiction  in  the  case  because  he  was  an 

"  The  Queen  v.  Anderson,  L.  R.  1  Crown  Cases  Reserved,  161. 


IN  RE  ROSS,   MAY    25,    1891.  63 

American  citizen  and  in  a  foreign  country  at  the  time  the 
offence  was  committed;  and  also  that  section  267  of  the 
Merchant  Shipping  Act,  which  it  was  said  the  Crown  relied 
upon  at  the  trial,  applied  only  to  British  seamen.  Mr. 
Justice  Blackburn  in  regard  to  this  last  statement  observed : 

"The  expression,  'British  seamen,'  may  mean  one  who,  whatever  his 
nationality,  is  serving-  on  board  a  British  ship,"  and  also  that  it 
had  been  decided  "that  a  ship,  which  bears  a  nation's  flag,  is  to  be 
treated  as  a  part  of  the  territory  of  that  nation.  A  ship  is  a  kind 
of  floating  island." 

Counsel  answered  that  if  it  floated  into  the  territory  of 
another  nation  it  would  cease  to  be  so,  and  the  jurisdiction 
of  the  flag  would  then  be  excluded,  and  that  the  man  might 
have  been  tried  in  France;  to  which  Chief  Justice  Bovill 
replied : 

"Even  if  he  might,  why  should  not  this  country  legislate  to 
regulate  the  conduct  of  those  on  board  its  own  vessels,  or  as  to  have 
concurrent   jurisdiction?" 

All  the  judges  concurred  in  sustaining  the  conviction. 
In  giving  his  opinion  the  Chief  Justice  said: 

"There  is  no  doubt  that  the  place  where  the  off'ence  was  committed 
was  within  the  territory  of  France,  and  that  the  prisoner  was, 
therefore,  subject  to  the  laws  of  France,  which  that  nation  might 
enforce  if  they  thought  fit;  but  at  the  same  time  he  was  also  within 
a  British  merchant  vessel,  on  board  that  (478)  vessel  as  a  part  of 
the  crew,  and,  as  such,  he  must  be  taken  to  have  been  under  the 
protection  of  the  British  law,  and  also  amenable  to  its  provisions. 
It  is  said  that  the  prisoner  was  an  Americaa  citizen;  but  he  had  em- 
barked by  his  own  consent  on  board  a  British  ship  and  was  at  the  time 
a  portion  of  its  crew.  There  are  many  observations  to  be  found 
in  various  writers  to  show  that  in  some  instances,  tho  subject 
to  American  law  as  a  citizen  of  America,  and  to  the  law  of  France 
as  being  found  within  French  territory,  yet  that  he  must  also  be 
considered  as  being  within  British  jurisdiction  as  forming  a  part 
of  the  crew  of  a  British  vessel,  upon  the  principle,  that  the  juris- 
diction of  a  country  is  preserved  over  its  vessels,  tho  they  may 
be  in  ports  or  rivers  belonging  to  another  nation."  '" 

Mr.  Justice  Blackburn  said: 

"Where  a  nation  allows  a  vessel  to  sail  under  her  flag,  and  the 
crew  have  the  protection  of  that  flag,  common  sense  and  justice 
require  that  they  should  be  punishable  by  the  law  of  the  flag."  " 

"P.  165.  "P.  170. 


g4  I  EXTRATERRITORIAL  CASES. 

The  views  expressed  by  the  Department  of  State,  quoted 
above,  are  in  harmony  with  the  doctrine  uniformly  asserted 
by  our  government  against  the  claim  by  England  of  a  right 
to  take  its  countrymen  from  the  deck  of  an  American 
merchant  vessel  and  press  them  into  its  naval  service.  It 
is  a  part  of  our  history  that  the  assertion  of  this  claim,  and 
its  enforcement  in  many  instances,  caused  a  degree  of  irrita- 
tion among  our  people  which  no  conduct  of  any  other 
country  has  ever  produced.  Its  enforcement  was  deemed  a 
great  indignity  upon  this  country  and  a  violation  of  our 
right  of  sovereignty,  our  vessels  being  considered  as  parts 
of  our  territory.  It  led  to  the  War  of  1812,  and  altho 
that  war  closed  without  obtaining  a  relinquishment  of  the 
claim,  its  further  assertion  was  not  attempted.  At  last,  in 
a  communication  by  Mr.  Webster,  then  Secretary  of  State, 
to  Lord  Ashburton,  the  special  British  minister  to  this  coun- 
try, on  the  8th  of  August,  1842,  the  claim  was  repudiated, 
and  the  announcement  made  that  it  would  no  longer  be 
allowed  by  our  government  and  must  be  abandoned.  The 
conclusion  of  Mr.  Webster's  communication  bears  upon  the 
question  before  us.  After  referring  to  the  claim  of  Great 
(479)  Britain,  and  demonstrating  the  injustice  of  the  posi- 
tion and  its  violation  of  national  rights,  he  said : 

"In  the  early  disputes  between  the  two  governments,  on  this  so 
long-contested  topic,  the  distinguished  person  to  whose  hands  were 
first  intrusted  the  seals  of  this  department  declared,  that  'the  simplest 
rule  will  be,  that  the  vessel  being  American  shall  be  evidence  that 
the  seamen  on  board  are  such.'  Fifty  years'  experience,  the  utter 
failure  of  many  negotiations,  and  a  careful  reconsideration  now 
had  of  the  whole  subject  at  a  moment  when  the  passions  are  laid,  and 
no  present  interest  or  emergency  exists  to  bias  the  judgment,  have 
convinced  this  government  that  this  is  not  only  the  simplest  and 
best,  but  the  only,  rule  which  can  be  adopted  and  obsei-ved  consistently 
with  the  rights  and  honor  of  the  United  States  and  the  security 
of  their  citizens.  That  rule  announces,  therefore,  what  vdll  hereafter 
be  the  principle  maintained  by  their  government.  In  every  regularly 
documented  American  merchant  vessel,  the  crew  who  navigate  it 
will  find  their  protection  in  the  flag  which  is  over  them."  ^^ 

This  rule,  that  the  vessel  being  American  is  evidence  that 
the  seamen  on  board  are  such,  is  now  an  established  doctrine 


Webster's  Works,  VI,  325. 


IN   RE  ROSS,   MAY    25,    1891.  65 

of  this  country;  and  in  support  of  it  there  is  with  the 
American  people  no  diversity  of  opinion  and  can  be  no 
division  of  action. 

We  are  satisfied  that  the  true  rule  of  construction  in  the 
present  case  w^as  adopted  by  the  Department  of  State  in  the 
correspondence  with  the  English  government,  and  that  the 
action  of  the  consular  tribunal  in  taking  jurisdiction  of  the 
prisoner  Ross,  tho  an  English  subject,  for  the  offence 
committed,  was  authorized.  While  he  was  an  enlisted  sea- 
man on  the  American  vessel,  which  floated  the  American 
flag,  he  was,  within  the  meaning  of  the  statute  and  the 
treaty,  an  American,  under  the  protection  and  subject  to  the 
laws  of  the  United  States  equally  with  the  seaman  who  was 
native  born.  As  an  American  seaman  he  could  have  de- 
manded a  trial  before  the  consular  court  as  a  matter  of 
right,  and  must  therefore  be  held  subject  to  it  as  a  matter 
of  obligation. 

We  have  not  overlooked  the  objection  repeatedly  made  and 
(480)  earnestly  pressed  by  counsel,  that  the  consular  tri- 
bunal is  a  court  of  limited  jurisdiction.  It  is  undoubtedly  a 
court  of  that  character,  limited  by  the  treaty  and  the 
statutes  passed  to  carry  it  into  effect,  and  its  jurisdiction 
cannot  be  extended  beyond  their  legitimate  meaning.  But 
their  construction  is  not,  therefore,  to  be  so  restricted  as 
to  practically  defeat  the  purposes  to  be  accomplished  by  the 
treaty,  but  rather  so  as  to  give  it  full  operation,  in  order 
that  it  may  not  be  a  vain  and  nugatory  act. 

It  is  true  that  the  occasion  for  consular  tribunals  in  Japan 
may  hereafter  be  less  than  at  present,  as  every  year  that 
country  progresses  in  civilization  and  in  the  assimilation  of 
its  system  of  judicial  procedure  to  that  of  Christian  coun- 
tries, as  well  as  in  the  improvement  of  its  penal  statutes; 
but  the  system  of  consular  tribunals  which  have  a  general 
similarity  in  their  main  provisions,  is  of  the  highest  im- 
portance, and  their  establishment  in  other  than  Christian 
countries,  where  our  people  may  desire  to  go  in  pursuit  of 
commerce,  will  often  be  essential  for  the  protection  of  their 
persons  and  property. 

14008  O.  W. 5 


66  I  EXTRATERRITORIAL  CASES. 

We  have  not  considered  the  objection  to  the  discharge  of 
the  prisoner  on  the  ground  that  he  accepted  the  conditional 
pardon  of  the  President.  If  his  conviction  and  sentence 
were  void  for  v^ant  of  jurisdiction  in  the  consular  tribunal, 
it  may  be  doubtful  whether  he  was  estopped,  by  his  ac- 
ceptance of  the  pardon,  from  assailing  their  validity;  but 
into  that  inquiry  we  need  not  go,  for  the  consular  court 
having  had  jurisdiction  to  try  and  sentence  him,  there  can 
be  no  question  as  to  the  binding  force  of  the  acceptance. 

Order  affirmed. 


BEFORE  THE  JUDICIAL  COMMITTEE  OF  THE  PRIVY 
COUNCIL. 

[Decided  Feb.   16,  1901,  Appeal  Cases,    (1901)    373]. 

The  Secretary  of  State  for  Foreign  Affairs,  Appellant, 
V,  Charlesworth,  Pilling  Co.,  et  al.,  Respondents. 

SYLLABUS. 
(By  the  Editor.) 

1.  EXTRATERRITORIALITY:      LEX     LOCI     REI     SITAE.     "The     law     of 

England  recognizes  the  principle  that  the  incidents  of  land  are 
governed  by  the  law  of  its  site"  and  this  is  not  affected  by 
extraterritoriality. 

2.  Id.:  Id.:  Expropriation:  Compensation  for  Buildings  erected  by 

the  British  Government  on  land  expropriated  from  one  of  its 
own  subjects  in  Zanzibar  is  regulated  by  local  Mohammedan 
law. 

3.  Id.  :  Id.     By  said  law,  such  buildings  do  not  become  the  landowner's 

property,  tho  he  has  the  right  of  removal,  and  the  value  of 
that  right  is  his  measure  of  compensation  as  regards  buildings. 

4.  Id.  :  Id.  :  Id.  :  Land.     But  British  extended  legislation  considered  in 

estimating  compensation  for  the  land. 

5.  Id.:  Judicial  Notice  of  the  local  law  is  taken  by  British  extra- 

terfitorial  courts. 

Sir  Robert  B.  Finlay  (Attorney-General),  Sir  Edward 
Carson  (Solicitor-General),  Mayne  and  Sutton,  for  appel- 
lant. 

Haldane,  Q.  C,  and  Branson,  for  respondents. 

Lord  Hobhouse: 

These  appeals  relate  to  the  amount  of  compensation  to  be 
paid  for  land  in  the  Island  of  Mombasa,  taken  by  the  Govern- 


SECRETARY  V.  CHARLESWORTH  ET  AL.,  FEB.  16,  1901.      67 

ment  under  statutory  powers.  The  suits  were  commenced 
by  two  claims  lodged  with  the  Collector  by  the  firms  of 
Charlesworth,  Pilling  &  Co.,  and  T.  D.  Charlesworth  &  Co., 
who  were  respectively  owners  of  different  plots  of  the  land 
so  taken.  The  collector,  Mr.  Craufurd,  who  was  also  acting 
on  behalf  of  the  Government,  made  awards  which  the  plain- 
tiffs did  not  accept,  and  which,  therefore,  were  referred  to 
the  consular  court  of  Mombasa.  The  vice  consul,  Mr.  Ga- 
tor, awarded  larger  sums,  which  the  defendant  has  not 
disputed.  But  the  plaintiffs  were  still  dissatisfied,  and  they 
appealed  to  the  court  for  Zanzibar.  The  court  again  en- 
hanced the  amount  of  compensation,  with  the  effect  that 
both  parties  are  dissatisfied  and  both  appeal  from  the 
decrees.  There  are,  therefore,  four  appeals,  two  original 
and  two  cross-appeals,  in  the  two  suits.  They  have  all 
been  consolidated,  and  have  been  argued  as  one  case  falling 
under  the  same  considerations,  with  the  exception  that  one 
important  item  of  claim  is  peculiar  to  one  plot  belonging 
to  Charlesworth,  Pilling  &  Co. 

Mombasa  is  a  small  island  adjacent  to  the  coast  of  con- 
tinental Africa,  and  it  forms  part  of  the  mainland  dominions 
of  the  Sultan  of  Zanzibar.  The  authorities  who  have  dealt 
with  this  case  are  established  and  regulated  by  Her  Ma- 
jesty's Order  in  Council  passed  in  1884  and  founded  on  a 
previous  treaty ;  and  by  a  subsequent  treaty  with  the  Sultan 
of  Zanzibar  in  the  year  1886.  There  have  been  later  trans- 
actions between  the  Sultan  and  an  English  company  and 
the  Queen  which  are  referred  to  in  the  judgment  of  the 
Vice-Consul  and  in  the  case  lodged  by  the  defendant,  the 
Secretary  of  State.  They  confer  on  the  Queen's  Govern- 
ment extensive  powers  of  administration  during  the  con- 
tinuance of  existing  agreements.  But  they  are  expressed 
not  to  affect  the  Sultan's  sovereignty,  and  for  the  purpose  of 
deciding  questions  of  an  international  character  in  these 
suits,  they  have  not  been  discussed  in  the  courts  below,  and 
need  not  now  be  discussed. 

The  Order  in  Council  dated  October  17,  1884,  is 
founded  on  the  usual  form  of  recital  that  by  treaty,  grant, 
usage,  sufferance,  and  other  lawful  means.  Her  Majesty 
the  Queen  has  power  and  jurisdiction  in  relation  to  Her 


68  I  EXTRATERRITORIAL  CASES. 

Majesty's  subjects  and  others  within  the  dominions  of  His 
Highness  the  Sultan  of  Zanzibar.  The  passages  material 
for  the  decision  of  the  present  questions  will  be  found  in 
ss.  6,  7,  and  8.  Section  6  shows  that  the  order  applies 
to  British  subjects  in  Zanzibar,  to  British  ships  in  Zanzibar 
waters,  to  Zanzibar  subjects  and  foreigners  in  specified 
cases,  and  to  British-protected  persons  in  so  far  as  by  treaty 
or  the  other  means  mentioned  Her  Majesty  has  jurisdiction 
in  Zanzibar  in  relation  to  them. 

"Sec.  7.  All  Her  Majesty's  jurisdiction  exercisable  in  Zanzibar 
under  the  Foreign  Jurisdiction  Acts  for  the  hearing  and  determina- 
tion of  criminal  and  civil  matters  *  *  *  shall  be  exercised  under 
the  provisions  of  this  order,  so  far  as  this  order  extends  and  applies. 

"Sec.  8.  (a)  *  *  *  Subject  to  the  other  provisions  of  the 
order  and  to  any  treaties  for  the  time  being  in  force  relating  to 
Zanzibar,  Her  Majesty's  criminal  and  civil  jurisdiction  in  Zanzibar 
shall,  so  far  as  circumstances  admit,  be  exercised  on  the  principles 
of,  and  in  conformity  with,  the  enactments  for  the  time  being  ap- 
plicable, as  hereinafter  mentioned,  of  the  Governor-General  of  India 
in  Council,  and  of  the  Governor  of  Bombay  in  Council,  *  *  *  and 
so  far  as  such  enactments  *  *  *  are  inapplicable,  shall,  so  far 
as  circumstances  admit,  be  exercised  under  and  in  accordance  w^ith 
the  common  and  statute  law  of  England  in  force  at  the  commence- 
ment of  this  order. 

" (^b)  *  *  =f:  declares  certain  Indian  enactments  not  affecting 
this  question  to  be  applicable  to  Zanzibar. 

"(c)  *  *  *  Any  other  existing  or  future  enactments  of  the 
Governor-General  of  India  in  Council,  or  of  the  Governor  of  Bombay 
in  Council,  shall  also  be  applicable  to  Zanzibar,  but  shall  not  come 
into  operation  until  such  times  as  may,  in  the  case  of  any  of  such 
enactments  respectively,  be  fixed  by  the  Secretary  of  State." 

The  subsequent  treaty,  concluded  in  1886,  has  the  fol- 
lowing provisions: 

"Art.  V.  Subjects  of  Her  Britannic  Majesty  shall  be  permitted 
throughout  the  dominions  of  His  Highness  the  Sultan  to  acquire  by 
gift,  purchase,  intestate  succession,  oy  under  will,  or  in  any  other 
legal  manner,  land,  houses,  and  property  of  every  description  whether 
movable  or  immovable,  to  possess  the  same,  and  freely  to  dispose 
thereof  by  sale,  barter,  donation,  will,  or  otherwise. 

"Art.  XVI.  Subjects  of  Her  Britannic  Majesty  shall,  as  regards 
their  person  and  property,  enjoy  within  the  dominions  of  His  High- 
ness the  Sultan  of  Zanzibar  the  rights  of  exterritoriality. 

"The  authorities  of  His  Highness  the  Sultan  have  no  right  to 
interfere    in    disputes    between    subjects    of    Her    Britannic    Majesty 


SECRETARY  V.  CHARLES  WORTH  ET  AL.,  FEB.  16,  1901.      69 

amongst  themselves  or  between  them  and  members  of  other  Christian 
nations.  Such  questions,  whether  of  a  civil  or  criminal  nature,  shall 
be  decided  by  the  competent  consular  authorities.  The  trial  and  also 
the  punishment  of  all  offenses  and  crimes  of  which  British  subjects 
may  be  accused  within  the  dominions  of  His  Highness  the  Sultan, 
also  the  hearing  and  settlement  of  all  civil  questions,  claims,  or  dis- 
putes in  which  they  are  the  defendants,  is  expressly  reserved  to  the 
British  consular  authorities  and  Courts,  and  removed  from  the  juris- 
diction of  His  Highness  the  Sultan. 

"Should  disputes  arise  between  a  subject  of  His  Highness  the 
Sultan  or  other  non-Christian  power  not  represented  by  Consuls  at 
Zanzibar,  and  a  subject  of  Her  Britannic  Majesty,  in  which  the  British 
subject  is  the  plaintiff  or  the  complainant,  the  matter  shall  be  brought 
before  and  decided  by  the  highest  authority  of  the  Sultan,  or  some 
person  specially  delegated  by  him  for  this  purpose.  The  proceedings 
and  final  decision  in  such  a  case  shall  not,  however,  be  considered 
legal  unless  notice  has  been  given,  and  an  opportunity  afforded  for 
the  British  Consul  or  his  substitute  to  attend  at  the  hearing  and 
final  decision. 

"Art.  XX.  Should  a  British  subject  die  within  the  dominions  of 
His  Highness  the  Sultan  of  Zanzibar,  or  dying  elsewhere  leave  prop- 
erty therein  movable  or  immovable,  the  British  Consul  shall  be 
authorized  to  collect,  realize,  and  take  possession  of  the  estate  of 
the  deceased  to  be  disposed  of  according  to  law. 

"Art.  XXI.  The  houses,  dwellings,  warehouses,  and  other  premises 
of  British  subjects  or  of  persons  actually  in  their  regular  service 
shall  not  be  entered  or  searched  under  any  pretext  by  the  officials 
of  His  Highness  without  the  consent  of  the  occupier,  unless  with 
the  cognizance  and  assistance  of  the  British  Consul  or  his  substitute." 

Article  XXIII  provides  for  the  free  exercise  of  religious 
worship. 

In  the  year  1895  the  Government  were  planning  railway 
communication  from  some  point  in  Mombasa  into  the  Afri- 
can mainland.  In  December,  1895,  the  plaintiffs  entered 
into  agreements  by  which  they  acquired  title  to  three  of 
the  plots  of  land  in  question.  The  fourth  plot  was  pur- 
chased in  April,  1896.  At  the  close  of  the  year  1895  the 
engineers  of  the  government  entered  on  the  land  and  began 
to  erect  railway  offices  on  one  of  the  plots  known  in  these 
proceedings  as  Saidbin-Rashid.  This  was  done  without 
any  lawful  authority;  and  it  has  given  rise  to  questions  of 
some  subtlety  on  which  the  Consular  Court  and  the  Zanzibar 
Court  have  differed  in  opinion.  Their  Lordships  will  first 
address  themselves  to  these  questions. 


70  I  EXTRATERRITORIAL  CASES. 

It  was  not  until  May  27,  1896,  that  the  Indian  Land 
Acquisition  Act  of  1894  was  brought  into  force  in  Zanzibar, 
and  not  till  November  2,  1896,  that  Mr.  Craufurd,  the 
Consul-General,  issued  a  notice  under  s.  6  of  that  Act 
declaring  that  the  land  would  be  required  for  the  railway, 
and  inviting  claims  for  compensation.  The  day  of  that 
declaration  is  the  day  on  which  the  property  is  to  be  valued 
for  purposes  of  compensation. 

The  plaintiffs  contend  that  on  that  day  the  buildings 
erected  by  the  Government  were  theirs,  and  they  claimed  be- 
fore the  Collector  to  be  paid  for  them.  They  did  not  in  the 
first  instance  claim  any  specific  sum  for  the  buildings  apart 
from  the  land,  but  in  the  course  of  the  hearing  before  the 
Vice-Consul  they  put  the  amount  at  Rs.  168,000.  They 
contend  that  the  rights  of  the  parties  are  governed  by 
English  law,  according  to  which  the  buildings  would  become 
attached  to  the  land.  The  defendant  contends  that  the 
case  is  governed  by  Mohammedan  law  and  that  the  land- 
owner is  not  entitled  to  the  buildings.  The  Vice-Consul 
decided  that  Mohammedan  law  applied  and  compelled  him 
to  disallow  the  plaintiffs'  claim  entirely.  The  Zanzibar  Court 
decided  that  English  law  applied  and  they  awarded  to  the 
plaintiffs  Rs.  60,140,  which  was  the  cost  of  the  buildings 
to  erect.  The  plaintiffs  insist  on  the  larger  sum  claimed 
by  them  as  being  the  actual  value  on  November  2,  1896. 

The  first  question  is  whether  the  dispute  is  to  be  governed 
by  the  English  or  the  Mohammedan  rules  applicable  to  un- 
authorized buildings  on  land.  The  Indian  enactments, 
which  the  Order  in  Council  makes  applicable  as  far  as 
circumstances  admit,  either  directly  or  by  the  order  of  the 
Secretary  of  State,  do  not  fit  this  case;  and  therefore  Her 
Majesty's  jurisdiction  is  to  be  exercised  under  and  in  ac- 
cordance with  the  law  of  England.  But  the  law  of  England 
recognizes  the  principle  that  the  incidents  of  land  are  gov- 
erned by  the  law  of  its  site.  Therefore,  by  the  terms  of 
the  order,  if  we  look  no  further.  Her  Majesty  would  exer- 
cise her  Zanzibar  jurisdiction  on  the  principle  that  Zan- 
zibar law,  which  is  Mohammedan  law,  applies  to  this  case. 
And  so  far  there  is  no  difference  of  opinion  in  the  court 
below. 


SECRETARY  V.  CHARLES  WORTH  ET  AL.,  FEB.  16,  1901.      71 

But  then  the  order  is  made  subject  to  treaties  for  the 
time  being  in  force,  and  Art.  XVI  of  the  treaty  of  1886 
confers  on  British  subjects  the  rights  of  exterritoriality 
as  regards  their  persons  and  their  property.  The  whole 
controversy  turns  on  the  meaning  of  this  one  word  "ex- 
territoriality." The  learned  counsel  who  argued  this  case 
could  not  find  any  decision  on  the  construction  of  the  term 
in  a  treaty.  Nor  do  the  textbooks  ^  tell  us  much  more  than 
that  the  word  denotes  a  fiction  by  which  the  house  and 
land  occupied  by  a  foreign  sovereign  or  his  ambassador  was 
treated  in  law  as  a  part  of  his  dominions;  and  that  it  is 
a  convenient  word  to  denote  any  group  of  privileges  belong- 
ing to  that  class.  The  same  writers  warn  us  that  fictions 
and  metaphors  must  not  be  pushed  too  far. 

The  Court  for  Zanzibar  appears  to  have  pushed  the  met- 
aphor very  far;  holding  that  the  term  works  a  complete 
separation  of  the  British  subject  and  his  property  from  the 
country  in  which  they  are.  It  seems  to  have  adopted  the 
principle  contended  for  in  the  Consular  Court,  and  negatived 
by  the  Vice-Consul,  namely,  that  where  there  is  a  question 
relating  to  land  between  two  British  subjects,  the  land  must 
be  looked  upon  as  actually  a  piece  of  British  land  for  the 
purpose  of  applying  the  law. 

Looking  at  the  latter  part  of  Section  XVI,  and  the  suc- 
ceeding sections  of  the  treaty  which  have  been  quoted 
above,  we  find  that  it  actually  specifies  all  the  usual  benefits 
accorded  by  Mohammedan  powers  to  a  British  subject.  If 
he  is  accused  of  crime  or  is  defendant  in  a  civil  suit,  his 
case  is  decided  by  his  ovm  nation's  Consul.  If  he  is  com- 
plainant the  Consul  may  intervene  to  protect  his  interest.' 
His  servants  receive  similar  protection.^  In  case  of  bank- 
ruptcy his  property  is  dealt  with  according  to  British  law.^ 
On  his  death  his  property  is  to  devolve  according  to  British 
law  and  to  be  administered  by  the  Consul.^     His  house  is 

'Their  Lordships  refer  to  Hall  on  International  Law,  p.  163;  (4th 
ed.),  p.  173;  Westlake  on  Private  International  Law,  (3rd  ed.),  p. 
226 

^Art.  XVI. 

'  Art.  XVII. 

*Art.  XVIII. 

=  Art.  XX. 


72  I  EXTRATERRITORIAL  CASES. 

not  to  be  entered  by  the  Zanzibar  authorities  against  his 
consent  unless  the  Consul  authorizes  it.*'  He  is  to  enjoy 
the  free  public  exercise  of  his  own  form  of  religion.'  Their 
Lordships  do  not  say  that  the  list  of  specific  instances, 
tho  very  full,  is  exhaustive  of  the  general  term.  Other 
cases  of  the  same  kind  would  doubtless  be  included  if  such 
there  are.  But  it  is  reasonable  to  conclude  that  the  things 
specified  show  the  nature  of  the  immunities  desired  by  and 
accorded  to  the  British  subject — complete  personal  pro- 
tection, assurance  of  satisfactory  judicial  tribunals,  and 
such  enjoyment  of  his  property  for  himself  and  for  those 
who  claim  under  him  as  British  law  would  afford  him  for 
British  property.  It  is  going  a  long  way  beyond  that, 
and  beyond  the  reason  for  these  immunities,  to  say  that  the 
moment  a  plot  of  land  is  purchased  by  an  Englishman  it 
is  stamped  with  the  same  character  and  is  attended  by  the 
same  incidents  that  would  belong  to  it  if  it  were  actually 
transferred  to  England  and  surrounded  by  other  English 
land ;  and  to  say  that  his  neighbours,  who  may  or  may  not  be 
British  subjects,  must  have  their  rights  and  liabilities 
governed  by  its  fictitious  and  not  by  its  actual  situation. 
Their  Lordships  hold  that  the  grant  of  exterritoriality 
does  not  involve  any  such  conclusion,  and  that  the  Vice- 
Consul  is  right  in  holding  that  in  this  case  the  local  law 
applies. 

The  next  question  is  how  the  local  law  is  to  be  ascertained. 
Is  it  matter  of  evidence,  or  should  the  Consular  Court  take 
judicial  notice  of  it?  The  Vice-Consul  held  that  he  was 
an  English  judge,  that  it  was  to  him  foreign  law  and  must 
be  proved  by  evidence,  tho  he  says  it  is  an  extreme 
instance  of  that  principle,  especially  as  he  is  also  one  of 
the  Sultan's  judges  administering  Mohammedan  law.  That 
circumstance,  however,  should  make  no  difference  in  the 
principle,  tho  it  enabled  the  Vice-Consul  personally  to 
appreciate  the  evidence  which  he  took.  The  Zanzibar 
Court  was  not  called  upon  to  express  any  opinion  on  this 
point  because  it  held  that  the  English  law  applies. 

'Art.  XXI.  'Art.  XXIII. 


SECRETARY  V.  CHARLESWORTH  ET  AL.,  FEB.  16,  190  1.      73 

The  situation  is  one  of  some  complexity.  The  root  of  the 
jurisdiction  is  the  treaty  grant  or  other  matter  by  which 
the  Queen  has  power  and  jurisdiction  in  Zanzibar.  She 
thereby  becomes  an  authority  in  the  foreign  territory  of 
Zanzibar,  tho  exercising  her  powers  quite  independently 
of  the  will  of  the  Sultan.  On  that  state  of  things  the 
foreign  jurisdiction  acts  supervene  for  the  purpose  of 
binding  all  the  subjects  of  the  Queen ;  and  they  enable 
Her  to  order  in  what  way  Her  authority  in  Zanzibar  shall 
be  exercised.  She  orders  that  it  shall  be  exercised  in  ac- 
cordance partly  with  certain  Anglo-Indian  laws  and  partly 
with  English  law.  The  English  law  again  for  certain  pur- 
poses, of  which  the  present  purpose  is  one,  incorporates 
the  local  law  of  Zanzibar.  But  thruout  the  matter 
Zanzibar  remains  foreign  territory,  and  the  Queen  and 
Her  officers  are  acting  as  Zanzibar  authorities  by  virtue  of 
the  power  which  she  has  acquired,  and  which  is,  within  its 
limits,  a  sovereign  power.  It  results  that  a  judge  acting 
within  these  limits  is  a  Zanzibar  judge  and  is  bound  to  take 
judicial  notice  of  the  Zanzibar  law,  whatever  it  may  be, 
applicable  to  the  case  before  him. 

The  Vice-Consul,  acting  on  his  view,  took  evidence  on 
the  Mohammedan  law,  which  he  found  to  be  in  favor  of  the 
defendant's  contention.  He  also  stated  that  such  was  his 
own  opinion,  which  his  experience  as  a  Mohammedan  judge 
qualified  him  to  form.  Their  Lordships  are  now  called  upon 
to  pronounce  for  themselves,  and  to  apply,  the  Moham- 
medan law  which  the  plaintiffs'  counsel  have  argued  to  be  in 
their  favor.  On  this  point  they  do  not  feel  any  difficulty. 
They  follow  the  law  laid  down  in  the  Hedaya.^ 

"If  a  person  usurp  land  and  plant  trees  in  it,  or  erect  a  building 
upon  it,  he  must  in  that  case  be  directed  to  remove  the  trees, 
and  clear  the  land,  and  to  restore  it  to  the  proprietor.  If  removal 
*  *  *  be  injurious  to  the  land,  the  proprietor  of  the  land  has 
the  option  of  paying  to  the  proprietor  of  the  trees  or  the  building 
a  compensation  equal  to  their  value,  and  thus  possessing  himself 
of  them;  because  in  this  case  there  is  an  advantage  to  both  and  the 
injury  to  both  is  obviated." 

'Book  37,  p.  539    (as  translated  by  Hamilton). 


74  I  EXTRATERRITORIAL  CASES. 

The  passage  then  goes  on  to  show  that  the  compensation 
is  the  value  which  the  trees  or  houses  bear  upon  the  pro- 
prietor being  directed  to  remove  them,  because  their  owner 
is  not  at  hberty  to  have  them  on  the  ground.  That  is  con- 
clusive against  the  plaintiffs'  contention  that  the  buildings 
had  become  their  property  on  November  2,  1896. 

The  plaintiffs'  counsel  then  argued  that  at  all  events  they 
had  on  that  day  a  right  to  call  on  the  defendant  to  remove 
the  buildings,  and  that  they  were  entitled  to  be  paid  for 
their  land  with  all  rights  attaching  to  it.  It  is  not  easy 
to  see  what  such  a  right  would  be  worth  to  them;  but  it 
is  sufficient  to  say  that  no  such  claim  has  been  made.  Their 
Lordships  must  hold  that  the  Vice-Consul  was  right  in 
wholly  disallowing  the  claim  of  the  plaintiffs  in  respect  of 
buildings,  and  that  the  defendant's  appeal  on  this  point 
must  prevail. 

There  has  been  great  difficulty  in  ascertaining  the  value 
of  the  land  taken.  By  the  Land  Acquisition  Act,  the  Court 
is  directed "  to  take  into  consideration  the  market  value  of 
the  land  at  the  date  of  the  publication  of  the  declaration, 
and  it  is  forbidden  ^^  to  take  into  consideration, 

"Fifthly,  any  increase  to  the  value  of  the  land  acquired  likely  to 
accrue  from  the  use  to  which  it  will  be  put  when  acquired.  Sixthly, 
any  increase  to  the  value  of  the  other  land  of  the  person  interested 
likely  to  accrue  from  the  use  to  which  the  land  acquired  will  be  put." 

The  plaintiffs  claimed  to  be  paid  for  the  whole  area  as 
for  building  ground  at  Rs.  2  per  square  yard=Rs.  11,132 
per  acre,  yielding  a  total  of  (in  round  numbers)  Rs.  700,000. 
The  Collector  took  the  average  of  a  number  of  purchases 
effected  by  private  contract  between  himself  and  various 
owners.  That  amounted  to  Rs.  431  per  acre,  yielding  a  total 
of  about  Rs.  32,000.  The  Vice-Consul  rejected  both  these 
principles.  The  claims  of  the  plaintiffs  he  treated  as  utterly 
extravagant.  There  is  land  available,  and  in  demand  for 
building,  in  and  adjoining  to  the  town  of  Mombasa,  and 
again  adjoining  to  the  harbor  of  Kilindini,  and  sea  frontage 
is  valuable.  The  plaintiffs'  land  is  at  considerable  distances 
from  both  these  places  and  it  has  no  sea  frontage.     There 

•  Sec.  23.  "  Sec.  24. 


SECRETARY  V.  CHARLESWORTH  ET  AL.,  FEB.  16,  1901.      75 

is  no  reason  to  suppose  that  it  has  any  present  value  for 
habitations.  The  most  part  of  it  is  jungle,  tho  here 
and  there  are  some  patches  of  cultivation.  Both  courts 
are  agreed  that,  independently  of  the  railway,  its  value  is 
very  small.  The  rather  crude  principle  adopted  by  the  Col- 
lector has  this  defect,  that  it  does  not  distinguish  between 
the  various  plots  of  land  sold  to  him,  which  varied  largely 
in  price  from  Rs.  750  an  acre,  and  more,  down  to  Rs.  64. 
Moreover,  several  of  the  contracts  were  made  with  Arabs, 
and  the  Vice-Consul  thinks  them  of  little  value  as  evidence 
of  price  because  he  did  not  find  that  the  Arabs  had  taken 
in  the  idea  that  the  value  of  their  land,  which  they  could 
actually  obtain  by  bargaining,  had  been  enhanced  by  the 
railway  scheme;  so  that  the  prices  given  to  them  would 
unduly  lower  the  average.  As  for  Indians,  he  thinks  that 
they  were  fully  alive  to  the  advantage  they  had  got  and 
w^ere  quite  capable  of  insisting  upon  it.     *     *     *  ^^ 

The  Zanzibar  Court  treat  the  matter  very  differently. 
After  disposing  of  Mr.  Craufurd's  purchases  and  expressing 
agreement  with  the  learned  judge  below,  that  if  the  Govern- 
ment had  come  promptly  into  the  field  they  would  have  had 
to  pay  very  little,  they  continue  as  follows : 

"The  purchases  made  by  Mr.  Craufurd,  which  have  been  dealt  with 
already,  not  constituting  in  our  opinion  such  sales  as  to  give  us  a  fair 
and  proper  rate,  we  must  rely  on  other  facts,  and  the  evidence  pro- 
duced at  the  trial  in  the  Court  below. 

"When  we  consider  the  potential  or  prospective  value  of  the  land 
taken,  whether  what  was  or  is  now  mere  agi-icultural  land  will  prob- 
ably in  a  few  years'  time  become  valuable,  we  must  bear  in  mind  the 
fact  that  all  this  land  is  in  close  proximity  and  contiguous  with  the 
terminus  of  a  railway  running  many  hundreds  of  miles  into  the  heart 
of  the  African  Continent,  for  the  construction  of  which  3,000,000^ 
has  been  voted  by  the  Imperial  Government.  Altho  the  plaintiffs' 
view  of  value  in  the  future  may  be  somewhat  sanguine,  yet  we  think 
the  learned  judge  was  also  somewhat  pessimistic;  a  railway  must 
increase  trade  and  traffic  and  the  value  of  building  sites  near  its 
most  important  station,  which  undoubtedly  is  Mombasa." 

The  only  ''other  fact"  mentioned  besides  the  evidence  of 
specific  purchases  on  which  the  Vice-Consul  proceeded,  and 
on  which  their  Lordships  have  already  commented,  is  the 

"  A  further  portion  of  the  discussion  of  the  facts  is  omitted.     Ed. 


76  I  EXTRATERRITORIAL  CASES. 

sale  by  one  of  the  plaintiffs  to  the  other  at  a  fictitious  price. 
For  after  mentioning  this  and  referring  to  the  opinions  of 
two  gentlemen  who  gave  evidence,  and  of  another  gentle- 
man who  was  not  called,  as  to  the  prospects  of  the  Protec- 
torate, they  inclined  to  the  opinion  that  it  is  in  a  prosperous 
condition,  "and  it  is  legitimate  to  infer  that  the  railway 
has  been  a  most  important  factor  in  effecting  it."  They 
then  add: 

"On  therefore  the  potential  values  we  feel  bound  to  differ  from 
the  learned  judge,  and  for  that  reason  to  estimate  more  highly  the 
properties  the  subject  of  this  appeal." 

Their  Lordships  cannot  read  this  part  of  the  judgment 
without  seeing  that  the  learned  judges  have  admitted  into 
their  minds  those  very  considerations  which  the  Act  directs 
them  to  exclude,  namely,  speculations  on  the  value  likely  to 
be  conferred  on  the  land  taken  for  the  railway  by  the  con- 
struction of  the  railway  itself.  To  what  extent  their  valua- 
tion has  been  affected  thereby  does  not  appear,  but  it  may 
easily  account,  even  if  standing  alone,  for  any  amount  of 
increase  over  a  market  price  which  has  been  inferred  from 
an  examination  of  actual  transactions. 

Their  Lordships  conclude  that  the  valuation  of  the  Vice- 
Consul  is  more  consonant  to  the  evidence,  and  is  based  on 
sounder  principles  than  that  of  the  Zanzibar  Court.  The 
plaintiffs  have  profited  largely  by  advances  in  the  prosperity 
of  the  Protectorate  which  have  been  caused  by  the  advent 
of  the  British  Government  and  by  the  action  it  has  taken. 
If  the  officials  had  acted  promptly  the  plaintiffs  would  have 
got  little  if  anything  more  than  their  purchase-money  plus 
the  statutory  15  per  cent.  As  it  is  they  have,  by  the  Vice- 
Consul's  valuation,  got  within  twelve  months:  for  one  plot 
twice  what  they  paid  for  it,  for  another  half  as  much  again, 
for  a  third  fifteen  times  as  much,  and  for  the  fourth  six 
times  as  much.  The  very  large  increase  on  those  prices 
which  the  Zanzibar  Court  has  awarded  is  due  either  to 
attending  to  evidence  not  properly  applicable  to  the  case, 
or  to  general  considerations  which  ought  not  to  have  been 
allowed  to  enter  into  the  mind  at  all.  As  regards  evidence, 
they  have  given  misleading  importance  to  sales  of  small 


SECRETARY  V.  CHARLESWORTH  ET  AL.,  FEB.  16,  1901.      77 

building  plots  within  or  close  to  Mombasa;  and  they  have 
treated  the  transfer  from  one  set  of  plaintiffs  to  the  other 
as  if  it  had  some  relation  to  market  value.  As  regards 
general  considerations,  possibly  that  of  the  behavior  of  the 
Collector,  and  certainly  the  large  importance  attached  to 
"potential  values,"  have  been  sources  of  error. 

The  Zanzibar  Court  made  one  decree  on  both  appeals  of 
the  plaintiffs.  It  should  have  dismissed  both  with  costs. 
Their  Lordships  will  humbly  advise  His  Majesty  the  King 
to  make  an  order  to  that  effect  on  the  defendant's  appeals, 
and  to  dismiss  the  plaintiffs'  appeals.  The  plaintiffs  must 
pay  to  the  defendant  the  costs  of  the  consolidated  appeals. ^- 

*"  In  Macdonald  v.  Anderson  (H.  B.  M.  Supreme  Court  for  China), 
North  China  Herald,  LXXII,  247  (Jan.  16,  1904),  Grantham  for  the 
plaintifl',  Kent  for  the  defendant,  where  the  foregoing  decision  was 
followed  in  the  main,  Bourne,  J.,  for  the  court  said: 

This  is  a  suit  for  recovery  of  land,  heard  at  Tientsin  on  the  10th, 
11th,  12th,  13th  and  14th  November,  1903.  The  plot  of  land  in  ques- 
tion is  situated  within  the  Tientsin  British  Municipal  Extension,  and 
was  registered  at  His  Britannic  Majesty's  Consulate  at  Tientsin  on 
18th  August,  1896,  as  the  property  of  the  plaintiff,  having  been  con- 
veyed to  him  by  Sun  Fu-hsing  under  Chinese  deed  of  perpetual  lease 
dated  IGth  July,  1896,  and  was  registered  at  the  same  Consulate  both 
in  1887,  and  on  the  13th  December,  1897,  as  the  property  of  the  de- 
fendant having  been  conveyed  to  his  predecessor  in  title,  Mr.  James 
Henderson,  by  Liu  K'ai-t'ai  under  Chinese  deed  of  perpetual  lease 
dated  September,  1861,  the  plaintiff  and  defendant  being  British,  and 
Sun  and  Liu  Chinese,  subjects. 

The  Tientsin  British  Municipal  Extension  is,  as  I  understand,  an 
area  handed  over  by  the  Chinese  Government  to  be  municipally  con- 
trolled by  the  British  local  authorities.  There  was  no  demise  of 
the  land,  as  there  was  by  the  Chinese  to  the  British  Government  in 
the  case  of  the  Tientsin  British  Concession.  The  native  proprietors 
may  hold  their  land  thereon,  or  sell  to  foreigners  of  any  nationality, 
as  they  please.  In  fact  the  conditions  are  much  the  same  as  those 
under  which  the  Shanghai  Settlement  is  held.  The  sovereignty  un- 
doubtedly remains  in  the  Emperor  of  China. 

The  registration  of  these  Chinese  deeds  by  the  Consul  appears  to 
have  been  no  more  in  effect  than  the  record  for  purposes  of  evidence 
of  the  fact  that  a  conveyance  of  certain  land  had  been  made  on  a 
certain  date  to  a  British  subject,  and  differs  in  principle  from  the 
system  of  registration  of  title  to  land  followed  in  His  Britannic  Ma- 
jesty's Consulate-General  at  Shanghai,  and  since  1902,  by  direction 
of  his   Majesty's   Minister,   also   at   Tientsin,   by   which   the   Chinese 


78  I  EXTRATERRITORIAL  CASES. 

local  land  authority,  as  agent  of  the  Chinese  Government,  issues 
a  new  title  to  the  British  holder  in  exchange  for  the  native  convey- 
ance, which  is  thus  virtually  merged  in  a  superior  form  of  title 
granted  immediately  to  the  British  subject  by  the  Chinese  Govern- 
ment. This  latter  system  is  the  Registration  of  Title,  the  Registrar 
by  his  act  vesting  the  legal  estate  in  the  holder,  who  then  appears  to 
have  a  title  indefeasible  except  in  cases  of  fraud  or  mistake.  I  con- 
ceive that,  if  under  this  latter  system  of  registration  two  deeds  had 
been  issued  for  the  same  land,  a  bona  fide  holder  of  the  prior  deed 
would  get  the  land,  the  holder  of  a  subsequent  deed  being  left  to  his 
right  of  action  against  a  fraudulent  seller  or  a  negligent  Chinese 
land  authority.^  But  under  the  system  of  Registration  of  Conveyances 
as  practised  at  Tientsin  when  the  deeds  in  question  were  registered, 
I  think  the  title  cannot  be  held  to  be  established  by  the  Magistrate's 
seal  and  the  Consul's  registration ;  for  there  is  often  nothing  to  show 
how  the  Magistrate's  seal  was  obtained — as  in  the  case  of  defendant's 
deed  of  1861.  It  was  given  in  evidence  that,  at  the  time  these  deeds 
were  registered  by  the  Consul,  no  reference  was  made  to  the  magis- 
trate when  a  conveyance  bearing  his  seal  was  brought  in  for  regis- 
tration. I  must  therefore  go  behind  the  registration  and  decide  the 
question  of  title  on  the  original  Chinese  deeds. 

The  plaintiflF's  case  was  that  on  the  16th  July,  1896,  he  obtained 
on  perpetual  lease  from  Sun  Fu-hsing  land  measuring  8.16  mow. 
The  Chinese  deed  was  sealed  by  the  Tientsin  magistrate — the  proper 
land  authority — who  located  the  land  on  the  Cemetery  Road  (now 
called  the  Canton  Road) ,  that  road  being  its  southern  border,  and  the 
eastern  wall  of  the  foreign  cemetery,  its  western  border.  The  deed 
was  then  returned  to  the  Consul  by  the  Taotai,  who  said  that  Mac- 
donald's  title  was  good,  and  was  registered  by  His  Majesty's  Consul 
at  Tientsin  on  the  8th  August,  1896,  as  No.  35  of  1896.  Sun  Fu-hsing 
had  bought  the  land  from  Chang  Han-chang  by  a  deed  dated  April 
25th,  1896;  and  some  person  of  the  surname  Chang  from  Li  Yu-te 
by  a  deed  dated  April,  1879. 

The  page  in  the  Land  Register  Recording  No.  35  of  1896  is  marked 
in  blue  pencil  "Cancelled.  Belongs  to  W.  C.  C.  Anderson,"  without 
name  or  date.  It  was  shown  in  evidence  that  this  note  of  cancellation 
was  written  in  1897  by  order  of  His  Majesty's  Consul  after  a  cor- 
respondence with  the  Tientsin  Taotai — the  senior  local  Chinese  civil 
authority.  I  need  scarcely  say  that  this  so-called  cancellation  is  of 
no  effect.  Since  Magna  Charta  an  Englishman  can  only  be  divested 
of  his  property  by  the  judgment  of  his  peers  or  the  law  of  the  land. 
Under  the  Orders-in-Council  for  the  government  of  His  Majesty's 
subjects  in  China  the  Consul  is  judge  of  a  provincial  court;  he  can 
therefore  after  the  proper  process  by  a  judgment  delivered  in  Court 
divest  a  man  of  his  property;  but  he  is  then  the  King's  Judge  ad- 
ministering the  law.     In  this  case  there  was  no  suit  instituted;   he 


*  Hogg  v,  Chu  Fu-fu,  North-China  Herald,  5th  September,  1900. 


MACDONALD  V.  ANDERSON,  JAN.  16,  1904.  79 

was  acting  in  his  capacity  of  Consul  in  virtue  of  the  King's  Commis- 
sion, that  is  of  the  prerogative;  and  the  King  cannot  in  virtue  of  his 
prerogative  divest  a  subject  of  his  rights. 

Soon  after  the  purchase,  the  plaintiff  contracted  -with  his  seller  Sun 
Fu-hsing  for  filling  in  the  land.  Sun  Fu-hsing  was  thereupon  arrested, 
and  his  coolies  prevented  by  the  municipal  police  from  going  upon 
the  land.  In  December,  1896,  the  defendant  began  to  fill  in.  On  these 
facts  Mr.  Grantham  for  the  plaintiff  contended  that  the  plaintiff  having 
been  disseised,  he  ought  to  be  regarded  as  in  legal  possession,  the 
defendant  being  put  to  prove  his  title.  But  it  will  be  seen  from  the 
statement  of  defendant's  case  below  that  the  defendant  and  his  pre- 
decessor in  title,  Mr.  Henderson,  exercised  frequent  acts  of  owner- 
ship over  this  land  from  1861  until  1895,  that  the  plaintiff  entered 
upon  the  land  during  defendant's  short  absence  in  the  summer  of  1896, 
that  the  entry  was  objected  to  as  soon  as  noticed  by  defendant's  agent, 
Mr.  Morling,  and  that  from  the  autumn  of  1896  until  today  the  de- 
fendant has  again  been  in  possession.  If  Macdonald  had  brought  his 
action  as  soon  as  he  was  dispossessed  in  1896  it  is  possible  that  he 
might  have  been  regarded  for  the  purposes  of  pleading  as  in  legal 
possession;  but  I  think  that  today  Mr.  Anderson  has  legal  possession, 
and  is  entitled  so  to  plead  as  he  has  done.  I  promised  Mr.  Grantham 
to  deal  with  this  point  altho  it  is  not  really  material,  for  on  the 
production  of  plaintiff's  registered  title-deed  the  onus  of  showing  that 
he  has  a  better  title  is  thrown  on  the  defendant. 

The  defendant's  case  is  that  the  land  in  question  was  part  of  a 
plot  originally  acquired  in  1861  by  Mr.  James  Henderson,  who  traded 
as  Kwanglung,  from  a  prominent  native  named  Liu  K'ai-t'ai.  The 
deed  was  sealed  by  the  Tientsin  Magistrate.  It  was  not  sent  to  the 
Consulate  for  registration  until  1887,  at  the  time  of  the  transfer  from 
Henderson  to  Anderson  described  below.  The  conveyance  from  Hen- 
derson to  Anderson  was  again  registered  on  30th  December,  1887. 
The  western  portion  of  the  lot  was  marked  off  as  a  foreign  cemetery 
in  1864,  being  paid  for  by  public  subscription,  and  was  taken  over 
by  the  Municipal  Council  in  1876.  Earth  was  taken  from  the  eastern 
portion — the  land  in  question — to  raise  the  level  of  the  western  por- 
tion— the  cemetery — by  Henderson  who  managed  the  cemetery.  Later 
Henderson  removed  earth  from  this  plot  to  raise  the  level  of  his  lot 
on  the  concession.  In  1875  a  Chinese  theatrical  troupe  rented  the 
land  from  Henderson.  In  1877  Henderson  removed  earth  from  this 
plot  to  raise  the  level  of  the  Cemetery  Road  which  was  bought  and 
made  by  him  on  behalf  of  the  Council.  In  1887  Mr.  Henderson,  in- 
tending to  go  home,  requested  his  son-in-law  Mr.  Cousins  to  sell  this 
land  for  him.  The  land  was  advertised  for  sale  by  auction  in  the 
"Chinese  Times,"  but  was  sold  by  Mr.  Cousins  by  private  treaty  to 
Mr.  J.  M.  Dickinson  for  Tls.  330.  It  was  then  a  deep  pond.  Mr. 
Henderson  refused  to  ratify  this  sale,  when  it  was  agreed  that  the  land 
should  be  put  up  to  auction,  and  that  Messrs.  Henderson  and  Dickin- 
son should  divide  any  excess  of  price  obtained  over  Tls.  330.     The  land 


80  I  EXTRATERRITORIAL  CASES. 

was  then  advertised  again  in  the  "Chinese  Times"  and  "Shihpao,"  a 
native  paper,  and  bought  by  auction  on  21st  November,  1887,  by  Mr. 
W.  C.  C.  Anderson  the  defendant  for  Tls.  1,070.  Henderson  now  con- 
veyed the  whole  original  lot  including  the  foreign  cemetery  to  Anderson 
who  reconveyed  the  western  portion — the  cemetery — to  the  Municipal 
Council.  In  1895  Mr.  Anderson  sent  his  employe  Mr.  Thomson  to 
survey  the  land.  He  then  made  a  plan  which  is  now  put  in,  showing 
that  the  dimensions  of  the  land  in  question  were  346  feet  from  East 
to  West  along  the  cemetery  road,  198  feet  from  North  to  South  along 
the  cemetery  eastei'n  wall,  and  that  nearly  the  whole  area  was  .a 
deep  pond.  On  31st  December,  1895,  His  Britannic  Majesty's  Consul 
claimed,  on  behalf  of  the  Chinese  Government  from  the  defendant,  land 
tax  on  the  land  in  question.  In  July,  1896,  Mr.  Anderson  went  to 
Japan  returning  in  September.  During  his  absence  Mr.  Morling  his 
partner  noticed  that  the  pond  was  being  filled  in,  and  wrote  to  the 
Consul  protesting  and  Mr.  Anderson  did  the  same  on  his  return. 
The  result  was  a  correspondence  lasting  several  months  between  the 
Consul  and  the  Taotai,  which  ended  in  the  cancellation  of  the  plain- 
tiff's registration  noticed  above. 

On  these  facts  Mr.  Kent,  for  the  defendant,  claimed  that  the  Real 
Property  Limitation  Act,  1874,  applied,  and  the  defendant  and  his 
predecessor  in  title,  Mr.  Henderson,  having  been  in  possession  of  this 
land  for  twelve  years  from  January,  1879,  when  that  statute  came 
into  force,  the  plaintiff's  right  of  action  was  barred. 

Mr.  Kent  relied  firstly  on  Hanson  v.  Watson '  in  which  Hannen 
C.  J.  decided  that  Shanghai  land  held  under  a  perpetual  lease  was 
realty  in  English  Law,  and  secondly  on  the  principle  that  limitation 
of  actions  belongs  to  procedure  which  is  governed  by  the  lex  fori,  that 
is,  here,  English  Law.  In  regard  to  the  first  point  I  hold  that  the 
law  of  China  ought  to  be  applied  to  the  facts  of  the  case.  The  Court 
administers  the  law  of  England "  but  what  is  the  law  of  England  in 
regard  to  immovable  property  situated  within  the  dominions  of  the 
Emperor  of  China?  Undoubtedly  that  rights  in  respect  of  such  prop- 
erty shall  be  governed  by  the  lex  sihis — that  is,  by  the  law  of  China.* 

To  apply  the  lav/  of  English  realty  to  land  under  the  sovereignty 
of  China  is  to  disregard  the  distinction  between  the  real  and  personal 
statutes — a  fundamental  principle  of  Private  International  Law  which 
can  be  traced  back  through  the  legal  history  of  the  western  world 
to  the  time  of  the  Roman  Republic,  and  which  is  as  necessary  today 
as  ever.  It  is  true  that  our  extraterritorial  rights  in  China  are  not 
rooted  in  the  history  of  western  law,  as  are  those  in  the  Levant, 
for  they  are  the  creatures  of  the  treaties  with  China,  the  earliest  of 

'  "North  China  Daily  Herald"  8th  October,  1899. 

•'  1865  Order-in-Council,  art.  5. 

'Story,  Conflict  of  Laws,  Ch.  X;  Heffter,  Sec.  42,  V;  Dicey,  Con- 
flict of  Laws,  Rule  138;  Wushishan  Case,  "North  China  Herald," 
XXIII,  90. 


MACDONALD  V.  ANDERSON,  JAN.   16,   1904.  81 

which  was  ratified  in  1842;  but  I  think  there  is  no  doubt  that  the 
Orders-in-Council,  from  which  this  Court  derives  its  jurisdiction,  wei'e 
framed  on  the  long-established  lines  of  an  extraterritorial  personal 
law.  When  article  5  of  the  Order-in-Council  of  1865  provides  that 
His  Majesty's  jurisdiction  shall,  as  far  as  circumstances  admit,  be 
exercised  upon  the  principles  and  in  conformity  with  the  Common 
Law,  the  Rules  of  Equity,  the  Statute  Law  and  other  law  for  the 
time  being  in  force  in  and  for  England,  it  could  not  have  been  in- 
tended that  the  Court  was  to  apply  to  land  in  China  the  English 
law  in  regard  to  land  in  England."^  A  well  known  rule  of  construc- 
tion requires  that  such  an  intention,  being  to  change  the  common 
law,  should  be  explicitly  stated."  "It  is  in  the  last  degree  improbable 
that  the  Legislature  would  overthrow  fundamental  principles 
*  *  *  without  expressing  its  intention  with  irresistible  clearness." ' 
The  principle  that  the  land  and  its  incidents  are  subject  to  the 
lex  situs  is  not  arbitrary  but  founded  upon  cogent  considerations  of 
justice  and  convenience — one  of  the  most  obvious  of  which  is  that 
contiguous  plots  of  land  should  be  subject  to  the  same  law  in  regard 
to  such  incidents  as  prescription  and  servitudes.  The  land  of  British 
subjects  at  Tientsin  is  often  conterminous  with  that  owned  by  French- 
men, Germans  and  subjects  of  other  Treaty  Powers.  If  the  home 
land  law  of  each  proprietor  is  to  apply  to  his  land  in  Tientsin  there 
will  be  different  periods  of  limitation,  prescription  for  servitudes, 
etc.  according  to  the  nationality  of  the  ovmer  for  the  time  being.  For 
example  the  German  period  of  limitation  is  30  years  with  conditions,' 
and  the  French  also  30  years"  while  the  English  is  12  years;  that  is  a 
British  subject  could  acquire  a  title  to  a  part  of  his  German  neigh- 
bor's land  by  12  years'  possession,  while  the  German  could  only  get 
the  same  right  by  30  years'  possession  of  the  British  subject's  land,  or 
the  German  might  reduce  the  necessary  period  from  30  to  12  years  by 
transferring  the  legal  estate  to  a  British  subject.  Such  injustice  and 
confusion  must,  in  any  case,  throw  doubt  on  a  construction  involving 
them;  but  I  can  find  no  color  for  such  a  construction  either  in  the 
Foreign  Jurisdiction  Act  or  in  the  China  Orders-in-Council.  The 
same  reasoning  excludes  the  law  of  the  owner's  domicile."'  Moreover 
supposing  that  we  were  in  a  circulus  inextricabilis  and  that  while  the 
English  law  applies  the  lex  sittis,  the  lex  sittis  applies  the  English 
law,  that  law  cannot  be  the  law  of  realty,  and  must,  therefore,  English 
law  being  ex  hypothesi  to  be  applied,  be  the  law  of  personalty.  For 
the  distinction  in  English  law  between  realty  and  personalty  is  not 


'Cf.  Westlake   (3rd  ed.),  226. 
'  Cf.  Story,  sec.  463. 

"Maxwell,  Interpretation  of  Statutes   (3rd  ed.),  113. 
"  German  Civil  Code,  sec.  927. 
"Civil  Code   (Napoleon),  sec.  2262. 

"Doe  dem.  Birtwhistle  v.  Vardell,  5  B.  &  C,  p.  451,  per  Abbott, 
C.  J. 

14008  O.  W 6 


82  I  EXTRATERRITORIAL  CASES. 

founded  on  principle,  but  is  historically  derived  from  the  old  forms 
of  action."  Realty  included  only  interests  in  land  for  the  enforce- 
ment of  which  a  real  action  was  available.  But  a  real  action  in 
England  was  not  open  to  a  plaintiff  in  regard  to  any  interest  in  land 
but  freehold,  certainly  not  in  regard  to  land  under  the  sovereignty  of 
a  Foreign  Prince,  a  result  utterly  repugnant  to  feudal  theory.'-  There- 
fore foreign  land  cannot  be  realty  in  English  law,  unless  explicitly 
made  so  by  legislation.  Supposing  then,  English  law  has  to  be  ap- 
plied, land  in  China  would  fall  under  the  same  law  as  English  chattels 
real,  and  for  the  same  reason — that  there  would  have  been  no  real 
action  open  to  the  plaintiff."  When  foreign  lands — even  foreign 
possessions  of  the  Crown — were  intended  to  be  held  under  an  English 
feudal  tenure,  this  was  explicitly  stated;  e.  g.  when,  in  1669,  Charles 
II  granted  Bombay  to  the  East  India  Company  it  was  "to  be  held  of 
the  King  in  Common  soccage  as  of  the  Manor  of  East  Greenwich." 

Stress  was  laid  at  the  Bar  and  in  the  judgment  in  Hanson  v. 
Watson  on  the  fact  that  the  tenure  of  the  Chinese  land  in  question 
corresponded  with  some  particular  English  tenure  of  land.  But  that 
would  seem  to  be  immaterial.  Will  the  courts  in  England  apply  the 
English  law  of  realty  to  possession  or  ownership  of  land  in  the  United 
States  because  the  conditions  of  the  tenure  chance  to  agree  with  some 
English  mode  of  holding  land?  The  question  is  precluded  by  the  fact 
that  the  land  is  foreign. 

But  I  should  have  been  bound  by  the  decision  in  Hanson  v.  Watson 
if  that  case  had  not  been  virtually  overruled,  as  it  seems  to  me,  by 
a  subsequent  case  in  the  Privy  Council."  *  *  *  It  is  true  that  the 
court  in  Zanzibar  had  as  its  local  law  the  Mohammedan  Code,  a  certain 
written  law,  while  we  in  China  are  thrown  back  on  a  very  few  Avritten 
rules — the  Penal  Code — the  greater  part  of  which  cannot  be  applied 
to  a  Christian  community — upon  local  customs  and  upon  the  Judge's 
conscience.  But  that  is  not  a  legal  reason  for  applying  the  English 
feudal  tenures  to  land  in  China,  altho  it  may  be  a  moral  one  for 
legislation.  I  am  clear  that  I  ought  to  apply  Chinese  law  to  the  facts 
of  this  case. 

In  regard  to  Mr.  Kent's  second  contention  that  limitation  of  actions 
belongs  to  procedure  and  is  therefore  governed  by  the  lex  fori,  altho 
Professor  Dicey ''  leans  to  the  opinion  that  limitation  of  actions  in 
regard  to  immovables  is  governed  by  the  lex  fori,  I  think  the  reason- 
ing of  Mr.  Foote  '*  read  in  connection  with  the  facts  of  this  case,  is 
conclusive  that  where  the  lex  situs  and  lex  fori  are  different,  as  they 

"Goodere,  Real  Property   (3rd.  ed.),  6. 
"  Digby,  Law  of  Real  Property,  69. 
"Williams,  Real  Property   (16th  ed.),  2. 

"  Secretary  of  State  for  Foreign  Affairs  v.  Charlesworth,  Pilling 
&  Co.,  ante,  66. 

"  Conflict  of  Laws,  525. 

'"  Private  International  Jurisprudence,  142-145  (3rd  ed.) ,  205-8.    Ed. 


MACDONALD  V.  ANDERSON,  JAN.  16,  1904.  g3 

are  here,  limitation  of  actions  must  be  governed  by  the  former."     I 
therefore  hold  that  the  Real  Property  Limitation  Act  does  not  apply. 

[Here  follows  a  discussion  of  the  title  deeds  and  other  questions 

of  fact.] 

The  plaintiff  therefore  fails  to  establish  his  title  to  this  land.  In 
regard  to  costs,  if  I  were  satisfied  that  the  plaintiff  had  thruout 
acted  with  complete  bona  fides,  I  should  make  no  order,  as  I  think  the 
defendant  was  negligent  in  not  keeping  boundary  stones,  with  the 
Consular  lot  number  cut  on  them,  upon  land  of  which  he  was  not 
in  physical  possession,  and  that  such  negligence  might  well  have  led 
an  innocent  victim  to  fall  into  a  net  prepared  by  native  conspirators. 
But  looking  to  the  whole  evidence  I  come  to  the  conclusion  that  the 
plaintiff  deserves  no  unusual  consideration.  I  think  he  must  have 
known  thruout  that  his  seller's  title  was  a  doubtful  one.  Costs 
ought  therefore  to  follow  the  event.  Judgment  for  defendant  with 
taxed  costs. 

The  law  applicable  to  land  in  China  owned  by  His  Majesty's  sub- 
jects has  been  so  long  a  moot  point  and  the  interests  involved  are 
so  large  that  I  think  I  ought,  now  that  the  question  has  been  raised 
by  this  suit,  to  state  my  opinion  of  the  effect  of  the  judgment  of  the 
Privy  Council  in  the  above  case."  That  case  seems  by  analogy  to 
establish  two  propositions:  that  Chinese  law  ought  to  be  applied  by 
His  Majesty's  Courts  in  China  to  the  incidents  of  land  in  China,  and 
that  His  Majesty's  judges  in  China  ought  to  take  judicial  notice  of 
Chinese  law.  In  regard  to  the  first,  the  greater  pai't  of  Chinese  writ- 
ten law  would  be  void  and  inoperative  in  an  English  Court  as  in- 
consistent with  the  policy  of  English  law.'°  Further,  Chinese  land 
law  consists  almost  entirely  of  local  custom:  a  great  deal  of  English 
law  has  been  uniformly  followed  for  half  a  century  by  His  Majesty's 
subjects  in  China,  and  has  thus  acquired  the  force  of  Chinese  law, 
e.  g.,  testamentary  disposition  of  land  in  China  according  to  the 
English  form,  and  English  forms  in  conveyancing.  Where  there  is 
no  custom,  the  duty  of  the  Chinese  judge  is  to  decide  according  to 
good  conscience.  The  British  Court  would,  I  conceive,  in  such  cases 
draw  on  the  civil  law  as  developed  by  modern  continental  codes  and 
text  writers,  including  our  own  law  of  personal  property,  which  comes 
in  some  respects  from  the  same  source.^"  If  a  land  law  so  derived 
is  thought  too  uncertain  to  support  the  large  foreign  commercial  in- 
terests now  centered  in  Shanghai  and  Tientsin,  legislation  alone  can 
supply  the  remedy.  Rights  of  limitation  and  servitudes  might  be 
governed  by  Land  Regulations  approved  by  the  Treaty  Powers,  and 
succession   ab   intestato   by   Order-in-Council.     In    regard   to   judicial 

"Pitt  V.  Dacre,  1876,  3  Ch.  D.,  295;  Westlake,  sec.  171. 
''  Secretary  of  State  v.  Charlesworth,  Pilling  &  Co.,  ante,  66. 
'"Dicey,  pp.  29,  32;  Fitzgerald,  In  re   (1903),  1  Ch.  941. 
'"Maine's  Ancient  Law,  283. 


84  I  EXTRATERRITORIAL  CASES. 

notice,  there  is  in  fact  no  Chinese  written  civil  law.  Judicial  notice 
might  be  taken  of  the  Penal  Code  of  the  present  dynasty,"  but 
custom  would  have  to  be  proved  by  evidence. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  C.  A.  Biddle. 

[Criminal  Cause  No.  6;  filed  March  6,  1907.] 

SYLLABUS. 

(By  the  Court  and  the  Editor.) 

JURISPRUDENCE;  The  Term  "Common  Law"  as  used  in  the  Act  of 
Congress  of  June  30,  1906,  creating  this  court,  interpreted  to 
mean  those  principles  of  the  common  law  of  England  and  those 
stautes  passed  in  aid  thereof,  including  the  law  administered 
in  the  equity,  admiralty  and  ecclesiastical  tribunals,  which  were 
adapted  to  the  situation  and  circumstances  of  the  American 
colonies  at  the  date  of  the  transfer  of  sovereignty,  as  modified, 
applied,  and  developed  by  the  decisions  of  the  state  and  Federal 
courts,  and  incorporated  generally  into  statutes  and  constitutions. 

Arthur  Basset,  Esq.,  U.  S.  District  Attorney,  for  the  pros- 
ecution. 
Francis  Ellis,  Esq.,  for  defendant. 

WiLFLEY,  J.: 

The  information  in  this  case  charges  C.  A.  Biddle  with 
the  crime  of  obtaining  money  under  false  pretenses.  A 
demurrer  to  the  information  has  been  filed  on  the  ground 
that  the  facts  alleged  in  the  information  do  not  constitute  an 
off'ense.  The  demurrer  is  based  upon  the  contention  that 
obtaining  money  under  false  pretenses  is  a  statutory  and 
not  a  common  law  offense,  and,  since  there  is  no  United 
States  statute  on  the  subject,  it  is  not  a  crime  to  obtain 
money  under  false  pretenses  in  China. 

The  law  defining  and  providing  for  the  punishment  of 
the  crime  of  obtaining  money  under  false  pretenses  is  found 
in  [an  English  statute  ^]  which  was  enacted  to  supply  the 
defects  of  the  common  law  relating  to  cheats.     The  Amer- 

-' Ta  Ching  Lu  Li   (Staunton's  Translation,  London,  1810). 
'30  Geo.  II   (1757),  cap.  24,  sec.  1. 


UNITED  STATES  V.  BIDDLE,  MARCH  6,   1907.  85 

ican  statutes  on  obtaining  money  under  false  pretenses 
follow  it  in  substance. - 

The  question  is  raised  by  the  demurrer :  Is  the  above  men- 
tioned provision  of  the  English  law  included  in  the  "common 
law"  as  the  term  is  used  in  Section  4  of  the  Act  of  June  30, 
1906,  establishing  this  court?  This  calls  for  an  interpre- 
tation of  the  term  as  used  in  the  statute. 

Chief  Justice  Marshall,  in  a  ruling  made  during  the  trial 
of  Aaron  Burr,  held  that  the  term  "common  law"  referred  to 

"those  general  principles  and  those  general  usages  which  are  to  be 
found,  not  in  the  legislative  acts  of  any  particular  state,  but  in  that 
generally  recognized  and  long  established  law,  which  forms  the  sub- 
stratum of  the  laws  of  every  state."  '^ 

This  is  an  accurate  general  definition  of  the  term  common 
law  as  it  existed  in  the  United  States  at  the  time  the  eminent 
jurist  gave  this  opinion;  but  in  order  to  meet  the  practical 
demands  of  the  situation  which  now  confronts  the  newly 
established  United  States  Court  for  China,  it  is  necessary  to 
descend  more  into  detail  and  to  define  the  meaning  of  the 
term  with  greater  particularity. 

When  our  ancestors  came  to  the  New  World  they  claimed 
the  common  law  of  England  as  their  birthright  and  brought 
it  with  them,  except  such  parts  as  were  judged  inapplicable 
to  their  new  conditions.  The  common  law  of  England  is 
the  unwritten  law  as  distinguished  from  the  written  or 
statute  law,  and,  in  its  ordinary  acceptation,  it  includes 
those  general  customs  which  pervade  the  whole  realm,  and 
particular  laws  which  have  been,  by  degrees,  added  thereto. 

The  common  law  as  introduced  into  the  United  States 
embraces  those  general  principles  of  the  common  law  of 
England  and  those  English  statutes  passed  in  aid  thereof, 
which  were  applicable  to  the  new  conditions  and  circum- 
stances existing  in  the  American  colonies  at  the  date  of  the 
change  of  sovereignty.^ 

-  Bishop,  New  Criminal  Law,  II,  pp.  236-7. 

*  Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  pp.  51-3. 

^  Mr.  Justice  Story  in  Petterson  v.  Winn,  5  Pet.  (U.  S.),  242;  see 
also  Commonwealth  v.  Knowlton,  2  Mass.,  530.  (And  compare  Forbes 
V.  Scannell,  13  Cal.,  242,  285;  Ware  v.  Wanless,  2  Wyoming,  144,  152. 
Ed.) 


gg  I  EXTRATERRITORIAL  CASES. 

This  is  also  the  view  taken  by  Professor  Bishop  in  his 
recent  work  on  Criminal  Law,  wherein  he  says: 

"The  common  law  of  England,  as  modified  by  statutes,  and  includ- 
ing the  law  as  administered  in  the  equity,  admiralty  and  ecclesiastical 
tribunals,  travelled  with  the  original  colonists  to  this  country;  and 
here  so  much  of  it  as  was  adapted  to  their  altered  situation  and  circum- 
stances, yet  no  more,  became  and  thenceforward  constituted,  our 
American  common  law.  But  when  it  was  thus  adopted  by  us,  we 
were  not  a  nation.  Not  even  the  Revolution,  but  the  Constitution 
of  the  United  States,  gave  us  nationality.  The  Revolution  and  the 
Constitution  did  not  annihilate  any  law  with  which  they  were  not  in 
conflict.  The  laws  existing  when  each  transpired  remained  such  in 
their  several  localities,  and  so  they  would  have  done  if  the  colonies 
and  the  states  had  been  politically  annihilated.  .  .  .  The  result  is 
that  the  nation  has  no  common  law  within  the  territorial  limits  of 
the  States,  and  all  unwritten  law  within  them  is  State  law.  Yet  in 
reason  it  is  obvious  that  there  are  circumstances  under  which,  not  a 
national  common  law,  but  the  somewhat  varying  local  laws  of  each 
of  the  several  States,  constitute  an  unwritten  rule  for  the  tribunals 
of  the   United   States."' 

In  America  the  United  States  courts,  when  called  upon 
to  interpret  and  apply  the  common  law,  are  not  confronted 
with  the  difficulty  which  now  confronts  this  court,  because 
there  a  United  States  court  has  only  to  administer  the 
common  law  of  the  state  or  states  in  which  the  pending  case 
originated.''  The  common  law  of  each  state  is  usually  well 
defined.  Here  we  have  the  situation  of  a  United  States 
court  sitting  outside  the  territorial  limits  of  the  States  and 
outside  the  territorial  limits  of  the  Nation  itself,  which  is 
called  upon  to  interpret  and  apply  the  common  law.  It 
is  readily  seen  that  this  gives  rise  to  difficulties  which 
do  not  exist  in  the  United  States  courts  sitting  in  America. 
The  difficulty  was  recognized  by  the  Honorable  Caleb  Cush- 
ing,  who,  as  Commissioner,  negotiated  the  treaty  of  July  3, 
1844,  and  who  subsequently,  as  Attorney-General  of  the 

^  Bishop,  New  Criminal  Law,  vol.  1,  p.  104.  See  also  Minor,  In- 
stitutes  (1891),  I,  34. 

"  Rather  that  "of  the  state  in  which  it  is  sitting,"  for  "there  is  no 
common  law  of  the  United  States"  as  distinguished  from  (that  of) 
the  individual  states,"  i.  e.,  no  "national  customary  law  distinct  from 
the  common  law  of  England,  as  adopted  by  the  several  states  each 
for  itself."  Corpus  Juris,  XII,  196.  Cf.  U.  S.  Rev.  Stats.,  sees.  858, 
915,  916.     Ed. 


UNITED  STATES  V.  BIDDLE,  MARCH  6,    1907.  87 

United  States,  delivered  an  opinion  ^  upon  the  meaning  of 
the  term  "common  law"  as  used  in  the  Act  of  Congress  of 
August  11,  1844,  which  was  passed  pursuant  to  said  treaty. 
The  term  "common  law"  is  used  in  the  statute  of  August  11, 
1848,  in  the  same  sense  in  which  it  is  used  in  the  statute 
of  June  30,  1906. 

The  brilliant  discussion  of  the  subject  by  Mr.  Gushing 
at  once  indicates  the  difficulties  of,  and  the  necessity 
for,  a  definite  and  comprehensive  interpretation  of  the 
term  as  used  in  the  law.  For  the  reasons  pointed  out  in  the 
foregoing  discussions  it  is  well-nigh  impossible  to  include  in 
a  single  statement  a  definition  of  the  common  law  which 
will  be  comprehensive  enough  to  cover  the  entire  field.  It 
is  believed,  however,  that  the  authorities  warrant  the 
following:  The  term  "common  law"  as  used  in  the 
statute  is  interpreted  to  mean  those  principles  of  the 
common  law  of  England  and  those  statutes  passed  in  aid 
thereof,  including  the  law  administered  in  the  equity,  ad- 
miralty, and  ecclesiastical  tribunals,  which  were  adapted  to 
the  situation  and  circumstances  of  the  American  colonies 
at  the  date  of  the  transfer  of  sovereignty,  as  modified, 
applied  and  developed  generally  by  the  decisions  of  the 
State  courts  and  by  the  decisions  of  the  United  States  courts, 
and  incorporated  generally  into  the  statutes  and  constitu- 
tions of  the  States. 

Holding,  therefore,  that  above  mentioned  English, 
statute  is  a  part  of  the  common  law  within  the  meaning  of 
the  term  as  used  in  the  Act  establishing  this  court,  the 
demurrer  is 

OVERRULED.^ 

''Ante,  p.  7  et  seq. 

"  The  sentence  of  conviction  following  this  order  was  reversed  by 
the  Court  of  Appeals  (post,  p.  128)  but  its  general  doctrine  was  left 
undisturbed  tho  it  has  lost  much  of  its  importance  thru  the  recognition 
by  that  Court,  as  in  force  here,  of  certain  special  acts  of  Congress 
embodying  the  modern  criminal  law  of  the  United  States.  It  is  no 
longer  necessary  for  Americans  in  China  to  resort  to  the  common  law 
or  English  statutes  in  order  to  ascertain  either  the  definition  or  the 
penalty  of  crimes.     Ed. 


88  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Axel   Hillebrandt,   Plaintiff   v.    S.   Zimmerman   &   Co., 

Defendant. 

[Civil  Cause  No.  4;  filed  March  6,  1907.] 

SYLLABUS. 
(By  the  Editor.) 

1.  CARRIERS.     Delivery  of  cargo  on  the  wharf  in  consignee's  pres- 

ence is  sufficient. 

2.  SET-OFF.     This  Court  will  entertain  in  a  set-off  against  a  foreign 

plaintiff  to  the  extent  only  of  his  claim. 

John  Hays,  Esq.,  for  plaintiff. 

Stirling  Fessenden,  Esq.,  for  defendant. 

WiLFLEY,  J.: 

This  is  a  suit  to  recover  Roubles  1,003.20,  the  value  of 
the  shortage  on  a  cargo  of  flour  shipped  by  plaintiff  from 
Shanghai  to  Vladivostok  by  defendants'  steamship  Han- 
namet.  Defendants  deny  liability  and  file  a  set-off  of 
Mex.  $393. 

The  testimony  disclosed  that  during  March  1906  plaintiff 
shipped  6,900  sacks  of  flour  from  Shanghai  to  Vladivostok 
by  defendants'  steamer  Hannamet.  Plaintiff  went  to 
Vladivostok  on  the  Hannamet  for  the  purpose  of  looking 
after  and  disposing  of  his  cargo.  Mr.  M.  A.  Katz  also 
went  to  Vladivostok  on  the  Hannamet  as  a  representative 
of  Zimmerman  &  Co.  6,900  sacks  of  flour  were  loaded  on 
board  the  Hannamet  at  Woosung  about  the  1st  of  March, 
1906.  The  contract  of  shipment  was  an  ordinary  bill  of 
lading  in  which  A.  Hillebrandt  was  consignee.  The  Han- 
namet arrived  at  Vladivostok  on  or  about  the  tenth  of  the 
month.  The  vessel  remained  in  the  harbor  for  two  days 
and  then  went  alongside  the  wharf  and  discharged  her 
cargo  in  about  seven  days.  Mr.  Hillebrandt  proceeded  to 
sell  his  cargo  immediately  and  before  he  left  Vladivostok, 
which  was  about  March  17,  he  had  sold  his  entire  cargo, 
and  delivered  from  the  wharf  all  except  a  small  portion  of 
it.     He  testified  on  this  point: 


HILLEBRANDT  V.  ZIMMERMAN  &  CO.,  MAR.  6,   1907.        89 

"I  had  disposed  of  all  the  flour  before  it  was  discharged.  I  took 
delivery  of  it  as  fast  as  it  was  discharged.  I  saw  my  cargo  out  on 
the  jetty.  It  was  four  or  five  days  before  I  received  the  last  of  it. 
I  left  for  Shanghai  the  same  day  on  which  the  last  of  the  cargo  was 
discharged." 

The  testimony  is  conclusive  that  all  of  the  ship's  cargo 
was  discharged  on  the  wharf  at  Vladivostok  while  Hil- 
lebrandt  was  there.  No  evidence  was  produced  to  show 
what  length  of  time  intervened  between  Mr.  Hillebrandt's 
departure  from  Vladivostok  and  the  date  on  which  the 
parties  to  whom  he  had  sold  the  last  of  his  flour  applied 
for  the  same  at  the  wharf.  Mr.  Katz  testified  that  part 
of  plaintifl"s  cargo  remained  on  the  wharf  for  a  period  of 
two  weeks,  during  which  time  he  took  all  the  precautions 
possible  under  the  circumstances  to  protect  it  from  theft 
and  exposure.  The  testimony  shows  that  there  is  no  cus- 
tom in  Vladivostok  under  which  merchants  are  allowed  a 
certain  time  in  which  to  remove  their  goods  from  the 
wharves.  The  rule  is  that  they  must  take  charge  of  their 
cargo  at  once.  When  Mr.  Hillebrandt  arrived  in  Shanghai 
he  received  notice  from  Vladivostok  of  a  shortage  of  456 
bags.  He  returned  to  Vladivostok  about  a  month  later 
and  verified  the  shortage. 

The  foregoing  facts  give  rise  to  two  questions  as  follows : 
(1)  Was  the  discharge  of  plaintiff's  cargo  on  the  wharf  at 
Vladivostok  a  delivery  within  the  meaning  of  the  law  re- 
lating to  the  duties  and  liabilities  of  carriers  at  sea?  (2) 
If  this  question  be  answered  in  the  negative,  are  defendants 
liable  for  the  shortage  disclosed  by  the  evidence  in  this  case  ? 

It  becomes  necessary  to  determine  what  constitutes  a 
complete  delivery.  The  authorities  discuss  this  subject  un- 
der two  heads:  viz.,  the  duties  of  a  common  carrier  in 
those  cases  (a)  where  the  consignee  is  not  present,  and  (b) 
where  he  is  present  at  the  point  of  destination  to  take  over 
the  goods  upon  arrival.  In  this  instance  it  is  not  necessary 
to  consider  the  first  class  of  cases  because  the  plaintiff,  Mr. 
Hillebrandt,  went  along  with  the  cargo  on  the  Hannamet  for 
the  purpose  of  taking  charge  and  disposing  of  it  at  Vladi- 
vostok.    The  question  of  what  constitutes  delivery  in  the 


90  I  EXTRATERRITORIAL  CASES. 

second  set  of  cases,  namely,  when  the  consignee  has  due 
notice  and  is  present  at  the  point  of  destination  when  the 
goods  arrive,  was  settled  by  the  Supreme  Court  of  the  United 
States  in  a  case  '  where  the  facts  were  as  follows :  The 
barque  Ta7igier  arrived  in  the  port  of  Boston  on  April  8 
with  a  cargo  of  cotton.  She  commenced  the  discharge  of 
her  cargo  on  Monday  and  on  the  same  day  the  master  gave 
notice  to  the  consignees  of  his  readiness  to  deliver  the  goods. 
On  Wednesday  all  of  the  cotton  which  had  been  unloaded 
on  Monday  and  Tuesday  was  removed  except  325  bales, 
which  remained  on  the  wharf  over  night.  The  unloading 
was  completed  on  Thursday  at  5  p.  m.  About  3  p.  m.  of 
the  next  day  the  cotton  remaining  on  the  wharf  was  con- 
sumed or  damaged  by  an  accidental  fire.  The  contract 
of  the  carrier  was  to  deliver  in  like  good  order  and  condition 
at  the  port  of  Boston  unto  Goddard  &  Pritchard.  The  Court 
there  decided  that  by  the  commercial  and  maritime  law 
it  is  a  settled  rule  that  a  carrier  by  water  shall  carry  from 
port  to  port  and  from  wharf  to  wharf  and  is  not  bound 
to  deliver  at  a  warehouse  or  business  place  of  the  consignee. 
It  also  held  that  goods  delivered  at  a  proper  wharf  at  a 
proper  time,  with  notice  to  consignee,  is  a  good  delivery. 

"Where  the  proper  consignee  of  the  goods  is  present,  accepts  the 
consignment  and  pays  the  freight  and  the  goods  are  accordingly  un- 
loaded with  reasonable  opportunity  for  him  to  remove  them,  custody 
is  transferred  from  the  carrier  and  responsibility  devolves  upon  the 
consignee  to  secure  them  from  the  weather  and  depredation,  and 
otherwise  make  disposition  of  them."  - 

The  text  writers  take  a  similar  view  of  the  subject. 

"The  rule  long  since  sanctioned  in  Great  Britain,  where  goods  are 
brought  by  water,  is  that  delivery  on  the  usual  wharf  will  discharge 
the  carrier,  and  such  also  is  the  American  rule.  This  is  particularly 
true  of  transportation  between  foreign  ports  which  for  centuries  has 
involved  the  use  of  Bills  of  Lading.  The  usage  at  the  present  day 
generally  requires  the  consignee  to  take  off  his  merchandise  in  lighters 
from  the  vessel's  side  on  its  arrival  in  port;  otherwise  the  carrier 
shall  land  the  goods  on  the  wharf  and  finally  shall  warehouse  them 


'Richardson  v.  Goddard,  23  How.,  28,   16   L.  ed.,  412. 
"  Goodwin  v.  Baltimore  &  Ohio  Railroad,  50  N.  Y.,  154;  paraphrased 
in  Schouler,  Bailments  and  Carriers,  sec.  504. 


HILLEBRANDT  V.  ZIMMERMAN  &  CO.,  MAR.  6,  1907.       91 

if  they  are  not  called  for  in  a  reasonable  time.  Personal  delivery 
dispenses  with  'personal  notice'  and  affording  'reasonable  opportunity* 
to  remove  the  goods."  ^ 

All  of  the  elements  of  delivery  as  defined  by  the  foregoing 
authorities  are  present  in  this  case,  and  we  hold  that  the 
cargo  in  question  was  legally  delivered  to  plaintiff  at  Vlad- 
ivostok when  it  was  discharged  upon  the  wharves  in  the 
presence  of  Mr.  Hillebrandt  himself  and  that  the  custody 
thereof  and  liability  therefor  then  passed  from  defendant 
to  plaintiff. 

In  view  of  this  holding  it  is  not  necessary  to  consider 
the  second  proposition  above  mentioned  as  to  the  duties  and 
liabilities  of  a  carrier  after  the  cargo  had  been  discharged 
upon  the  wharf  had  there  not  been  a  personal  delivery  to 
the  consignee. 

This  leaves  to  be  disposed  of  the  matter  of  the  set-off 
contained  in  defendant's  answer.  A  set-off  is  a  counter- 
demand,  generally  of  a  liquidated  debt,  growing  out  of  a 
separate  transaction,  for  which  an  action  might  be 
maintained  by  the  defendant  against  the  plaintiff  to  recover 
a  judgment  in  his  own  favor.  Such  is  the  character  of  the 
cross  action  in  this  case.  This  Court  has  no  jurisdiction 
to  give  a  judgment  in  such  a  case,  because  it  is  without 
power  to  enforce  a  judgment  against  anyone  other  than 
an  American  citizen.  It  has  been  held  by  Attorney-General 
Speed  *  that  in  cases  between  a  foreign  plaintiff  and  an 
American  defendant,  where  the  foreigner  establishes  his 
claim  against  the  American,  the  latter  may  plead  a  counter- 
demand  in  an  amount  equal  to  or  less  than  the  amount 
of  the  claim  of  the  foreigner  and  the  Court  will  allow  the 
same.  But  in  no  instance  will  the  Court  give  affirmative 
judgment  against  a  foreign  litigant  in  any  amount.     *     *     * 

Petition  of  plaintiff  is  denied  and  defendant's  plea  of 
set-off  is  dismissed  without  prejudice.  Plaintiff  will  pay 
the  costs. 


^  Schouler,  Bailments  and  Carriers,  sec.  511.     See  also  Sullivan  v. 

Thompson,  99  Mass.,  259. 
'  Ante,  p.  27. 


92  I  EXTRATERRITORIAL  CASES. 

IN   THE   UNITED   STATES   COURT   FOR  CHINA. 

IN   RE  YOUNG   JOHN    ALLEN'S   WILL. 

[Special  Proceeding  No.  41;  filed  August  16,  1907.] 

SYLLABUS. 

(By  the  Court  and  the  Editor.) 

1.  BOMICIL '  under  American  law  is  that  place  which  a  person  has 

freely  chosen  for  his  abode  and  from  which  he  has  no  present 
intention  of  removing. 

2.  EXTRATERRITORIALITY  is  that  condition  by  which  a  state,  usually 

by  virtue  of  a  treaty,  extends  its  jurisdiction  beyond  its  own 
boundaries  into  the  territory  of  another  state  and  exercises  the 
same  over  its  nationals  who,  for  the  time  being,  may  be  sojourn- 
ing within  the  territory  of  the  other  state. 

3.  Id.:  Domicil.     There  is  nothing  in  the  theory  or  practical  operation 

of  the  law  of  extraterritoriality  repugnant  to,  or  irreconcilable 
with,  the  application  of  the  American  law  of  domicil  by  American 
Courts  to  American  citizens  residing  in  a  country  with  which 
the  United  States  has  treaties  of  extraterritoriality. 

4.  Id.  :    Id.     Dr.   Young  J.   Allen,  having  resided  in    Shanghai  for   a 

period  of  forty-seven  years  prior  to  his  death,  and  having  ex- 
pressed the  intention  of  making  Shanghai  his  pennanent  home, 
thereby  acquired  an  extraterritorial  domicil  in  China. 

5.  Id.  :   Lex  Domicillil     The  Court  in  administering  his  estate  will 

be  guided  by  the  law  in  force  in  China,  the  place  of  his  domicil 
at  the  date  of  his  death,  and  not  by  the  statutes  of  Georgia,  the 
place  of  his  domicil  of  origin. 

6.  Id. :  Id.:  Holographic  Wills  are  valid  in  this  jurisdiction. 

Edgar  Pierce  Allen,  Esq.,  for  the  proponent. 

WILFLEY,  J.: 

In  view  of  the  well  established  principle  that  the  personal 
property  of  a  deceased  person  must  be  administered  ac- 
cording to  the  law  of  his  domicil,  it  becomes  necessary  at 
the  outset  to  determine  where  the  testator  in  the  will  here 
presented  for  probate  was  domiciled  at  the  date  of  his  death. 

The  facts  in  this  case  are  as  follows :  Dr.  Young  J.  Allen 
was  born  in  the  year  1836  in  the  State  of  Georgia.  In 
1860  he  moved  to  China,  where  he  lived  continuously  for  a 
period  of  forty-seven  years.     He  died  in  Shanghai  on  May 

'Spelling  preferred  by  Anderson's  Law  Die.  (1893),  Standard 
Dictionary  (1907),  Bouvier's  (1914),  and  adopted  by  Prof.  J.  B.  Moore. 
See  his  American  Notes  to  Dicey,  Conflict  of  Laws  (1896),  pp.  727 
et  seq. 


IN  RE  ALLEN'S  WILL,  AUG.  16,  1907.  93 

30,  1907.  China  was  the  chosen  field  of  his  activities  and 
the  instruction  of  its  people  in  the  principles  of  Christian 
civilization  was  his  life  work.  Here  his  family  was  reared 
and  now  lives.  Here  his  estate,  consisting  solely  of  per- 
sonal property,  was  accumulated,  and  it  was  his  oft  ex- 
pressed intention  to  make  China  his  permanent  home.  The 
will  which  his  legal  representatives  now  present  for  probate 
is  wholly  in  his  own  handwriting  and  was  duly  attested  by 
two  witnesses,  neither  of  whom,  however,  is  within  the 
jurisdiction  of  the  Court.  This  being  the  case,  the  instru- 
ment before  the  Court  must  be  regarded  as  an  holographic 
will,  which  under  the  common  law,  now  in  force  in  China, 
is  valid  -  tho  the  Court  is  not  informed  that  such  a  will 
is  recognized  by  the  law  of  Georgia. 

These  facts  present  for  consideration  one  of  the  most 
complex  and  important  subjects  connected  with  the  opera- 
tion of  the  law  of  extraterritoriality.  Succinctly  stated,  the 
legal  question  here  involved  is :  Can  an  American  citizen 
acquire  what  may  be  termed  an  extraterritorial  domicil 
in  China?  Can  he  have  a  domicil  out  of  the  United.  States 
in  which  he  is  nevertheless  governed  by  the  laws  of  the 
United  States  or  must  he  retain  that  of  the  state  where  he 
was  domiciled  before  settling  in  China?  In  investigating 
this  subject  it  will  be  necessary  to  have  a  clear  conception 
first,  of  the  American  law  of  domicil  and  second,  of  the  true 
meaning  of  extraterritoriality. 

II. 

That  a  person  must  always  have  a  domicil  somewhere, 
that  no  person  may  have  more  than  one  domicil  at  a  time, 
that  every  natural  person  free  and  sui  juris  may  change  his 
domicil  at  pleasure,  and  that  civil  status,  with  its  attendant 
rights  and  disabilities,  depends,  not  upon  nationality  but 
upon  domicil,  are  propositions  upon  which  the  authorities 
are  universally  agreed.  While  domicil  has  been  defined  by 
law  writers  in  a  variety  of  ways,  yet  there  are  two  elements 
which  are  found  in  all  definitions,  namely,  residence  and 
a7iimus  manendi,  or  intention  of  continued  residence.     In 

"^  In  re  Lucy  Lucker's  Will,  post,  p.  626.     Ed. 


94  I  EXTRATERRITORIAL  CASES. 

recent  years,  however,  there  has  been  a  tendency  on  the 
part  of  the  courts  to  modify  this  definition  by  substituting 
for  the  animus  manendi,  or  intention  of  residing  per- 
manently in  a  certain  place,  the  absence  of  the  animus  re- 
vertendi,  or  the  intention  of  returning  to  the  place  of  former 
residence. 
Vattel  ^  defines  domicil  as 

"an  habitation  fixed  in   some  place  with  the  intention  of  remaining 
there  always." 

Savigny  *  says, 

"That  place  is  to  be  regarded  as  a  man's  domicil  which  he  has  freely 
chosen  as  his  permanent  abode  (and  thus  for  the  center  at  once  of 
his  legal  relations  and  his  business) ." 

According  to  Judge  Story,^ 

"That  place  is  properly  the  domicil  of  a  person  in  which  his  hab- 
itation is  fixed  without  any  present  intention  of  removing  there- 
from." 

Phillimore  '^  defines  it  as 

"Residence  at  a  particular  place  accompanied  with  (positive  or 
presumptive  proof  of)  an  intention  to  remain  there  for  an  unlimited 
time." 

The  definition  of  Vice-Chancellor  Kindersley,'  while  lack- 
ing in  precision,  is  perhaps  more  comprehensive  than  any 
of  the  foregoing.     It  is  as  follows : 

"That  place  is  properly  the  domicil  of  a  person  in  which  he  has 
voluntarily  fixed  the  habitation  of  himself  and  his  family,  not  for  a 
mere  special  and  temporary  purpose,  but  with  a  present  intention 
of  making  it  his  permanent  home,  unless  and  until  something  (which 
is  unexpected  or  uncertain)  shall  occur  to  induce  him  to  adopt  some 
other  permanent  home." ' 

Mr.  Webster,  while  Secretary  of  State,  had  occasion  to 
consider  the  law  of  domicil,  and  expressed  his  views  on  the 
subject  as  follows: 

"Law  of  Nations  Liv.  i.  c.  XIX,  s.  214. 
■•Conflict  of  Laws  (Guthrie's  trans.,  2nd  ed.),  p.  97. 
'Conflict  of  Laws   (7th  ed.),  s.  43. 
'Int.  Law   (3d  ed.)    IV,  s.  49. 
Mn  Lard  v.  Colvin,  28  L.  J.   (Ch.),  366   (1859).     Ed. 


IN  RE  ALLEN'S  WILL,  AUG.  16,  1907.  95 

"The  general  rule  of  the  public  law  is,  that  every  person  of  full 
age  has  a  right  to  change  his  domicil;  and  it  follows,  that  when  he 
removes  to  another  place,  with  an  intention  to  make  that  place  his 
permanent  residence,  or  his  residence  for  an  indefinite  period,  it 
becomes  instantly  his  place  of  domicil;  and  this  is  so,  notwithstanding 
he  may  entertain  a  floating  intention  of  returning  to  his  original 
residence  or  citizenship  at  some  future  period.  *  *  *  ijj  questions 
on  this  subject,  the  chief  point  to  be  considered  is  the  animus  ma- 
nendi, or  intention  of  continued  residence;  and  this  must  be  decided 
by  reasonable  rules  and  the  general  principles  of  evidence.  If  it 
sufficiently  appear  that  the  intention  of  removing  was  to  make  a 
permanent  settlement,  or  a  settlement  for  an  indefinite  time,  the  right 
of  domicil  is  acquired  by  a  residence  even  of  a  few  days."  * 

The  feature  here  prominently  brought  out,  that  domicil 
will  not  be  defeated  by  a  mere  "floating  intention"  to  re- 
move from  the  locality  at  some  future  date,  has  been  adopted 
by  American  courts  in  recent  years.'-' 

In  view  of  the  foregoing  we  feel  warranted  in  holding 
that  under  American  law,  a  person's  domicil  is  that  place 
which  he  has  freely  chosen  for  his  abode  and  from  ivhich 
he  has  no  present  i7iteyition  of  removing. 

III. 

It  now  becomes  necessary  to  ascertain  if  there  be  any 
reason  why  the  foregoing  principles  may  not  be  applied  to 
American  citizens  residing  in  a  country  with  which  the 
United  States  has  a  treaty  of  extraterritoriality.  This 
leads  to  an  investigation  of  the  real  meaning  of  extra- 
territoriality. It  is  well-nigh  impossible  to  give  an  exact 
definition  of  the  term,  yet  its  practical  application  is  not 
difficult  of  comprehension.  Broadly  speaking,  extraterri- 
toriality ^°  is  a  term  used  to  describe  the  act  by  which  a 
state  extends  its  jurisdiction  beyond  its  own  boundaries 
into  the  territory  of  another  state,  and  exercises  the  same 
over  its  nationals  who,  for  the  time  being,  may  be  sojourning 
in  the  territory  of  the  other  state.     It  is  usually  based  upon 

*  Thrasher's  Case,  Moore,  International  Law  Digest,  III,  818. 
^  Oilman  v.  Oilman,  52  Maine,  165,  83  Am.  Dec,  502. 
^^  For    other    definitions,    see    the    article    "Extraterritoriality,"    in 
Corpus  Juris.     Ed. 


96  I  EXTRATERRITORIAL  CASES. 

treaty  but  the  rights  and  privileges  arising  therefrom  are 
frequently  amplified  by  usage  and  sufferance.  Extraterri- 
toriality is  put  in  operation  mainly  by  western  states  in 
oriental  countries  where  it  signifies  principally  the  exemp- 
tion of  the  nationals  of  said  western  states  from  local  juris- 
diction and  a  corresponding  exercise  of  jurisdiction  over 
them  by  their  own  national  authorities. 

For  the  purpose  of  ascertaining  the  practical  operation 
of  the  law  of  extraterritoriality,  we  shall  now  trace  in 
brief  outline  the  history  of  its  application  in  China  by  two 
prominent  western  nations,  the  United  States  and  Great 
Britain,  under  their  treaties  of  extraterritoriality  with  that 
country.  It  will  be  observed  that  the  treaties  under  which 
these  two  nations  operate  in  China  are  substantially  the 
same.  Great  Britain,  however,  has  exercised  its  rights 
and  privileges  under  the  treaties  and  developed  its  law  of 
extraterritoriality  in  China  to  a  far  greater  extent  than  has 
the  government  of  the  United  States. 

The  first  treaty  of  extraterritoriality  between  the  United 
States  and  China  was  entered  into  on  July  3,  1844,  and  a 
second  treaty  was  concluded  on  June  18,  1858.  Articles 
XXV  and  XXVII,  respectively,  of  said  treaties  provide: 

"All  questions  in  regard  to  rights,  whether  of  property  or  of 
person,  arising  between  citizens  of  the  United  States  in  China,  shall 
be  subject  to  the  jurisdiction  and  regulated  by  the  authorities  of  their 
own  Government." 

Congress  in  1848  and  in  1860  enacted  statutes  for  the 
purpose  of  carrying  into  full  force  and  effect  the  provisions 
of  these  treaties,  and  to  that  end  extended  certain  laws 
to  China  and  created  Consular  Courts,  vesting  them  with 
authority  to  apply  and  execute  said  laws.  The  body  of  laws 
which  Congress  has  extended  to  Americans  in  China  consists 
of  those  statutes  of  the  United  States  suitable  to  carry  the 
treaties  into  effect,  the  common  law,  including  the  law  of 
equity  and  admiralty,  and  certain  regulations  of  the 
American  Minister  to  China  promulgated  to  supply  the 
deficiencies  in  these  laws.^^ 

"  U.  S.  Revised  Statutes,  sec.  4086. 


IN  RE  ALLEN'S  WILL,  AUG.  16,  1907.  97 

On  June  30,  1906,  Congress  passed  the  act  creating  this 
Court  and  vested  it  substantially  with  the  jurisdiction 
formerly  exercised  by  the  Consular  Courts. ^^ 

Great  Britain,  on  the  other  hand,  by  successive  foreign 
jurisdiction  acts  from  1843  to  1890,  by  numerous  Orders 
in  Council,  by  regulations  promulgated  by  the  British 
Minister  at  Peking,  and  by  the  decisions  of  the  British 
Supreme  Court  at  Shanghai,  has  amply  provided  for  the 
protection  and  government  of  its  subjects  in  China,  and 
has  probably  carried  the  law  of  extraterritoriality  in  China 
to  a  higher  degree  of  development  than  any  other  power. 
The  extent  to  which  Great  Britain  has  exercised  its  power 
under  the  treaties  will  appear  from  an  examination  of  what 
is  known  as  the  Foreign  Jurisdiction  Act  of  1890,  and  an 
examination  of  the  jurisdiction  possessed  by  the  British 
Supreme  Court  at  Shanghai.  Section  1  of  said  act, 
provides : 

"It  is  and  shall  be  lawful  for  Her  Majesty  the  Queen  to  hold, 
exercise  and  enjoy  any  jurisdiction  which  Her  Majesty  now  has,  or 
may  at  any  time  hereafter  have,  within  a  foreign  country  in  the  same 
and  as  ample  a  manner  as  if  Her  Majesty  had  acquired  that  jurisdic- 
tion by  the  cession  or  conquest  of  territory." 

Section  8  of  the  act  provides : 

"Any  act  or  thing  done  in  pursuance  of  any  jurisdiction  of  Her 
Majesty  in  a  foreign  country  shall  be  as  valid  as  if  it  had  been  done 
according  to  the  local  law  then  in  fo^'ce  in  that  country." 

And  Paragraph  2  of  Section  5  provides : 

"Thereupon  those  enactments  (described  in  the  first  schedule  of 
this  Act)  shall,  to  the  extent  of  that  jurisdiction,  operate  as  if  that 
country  were  a  British  possession  and  as  if  Her  Majesty  in  Council 
were  the  Legislature  of  that  possession."  " 

The  British  Supreme  Court  in  China,  which  was  es- 
tablished in  1866,  is  vested  with  jurisdiction  to  execute  the 
laws  which  Great  Britain  has  extended  to  its  subjects  in 
China.  It  is  in  fact  a  British  Court,  and  in  addition  to 
ordinary  civil  jurisdiction,  exercises  it  in  cases  involving 

"  For  a  complete  statement  of  the  history  of  the  American  law 
of  extraterritoriality  in  China,  see  Hinckley,  American  Consular  Juris- 
diction in  the  Orient. 

"  53  and  54  Victoria,  Chapter  37. 

14008  O.  W. 7 


98  I  EXTRATERRITORIAL  CASES. 

admiralty,  bankruptcy  and  lunacy,  and,  in  addition  to  the 
ordinary  criminal  jurisdiction,  in  some  special  statutory 
offenses  such  as  offenses  against  the  Patents  and  Trade- 
marks Acts.^^  To  such  an  extent  has  the  British  jurisdic- 
tion in  China  been  developed  that  there  is  almost  no  legisla- 
tive or  judicial  phase  of  the  law  in  force  in  England  which, 
if  necessary  in  China,  has  not  its  counterpart  here.  On 
the  other  hand  "common  law"  and  "equity"  form  the  vague 
and  indefinite  description  of  the  main  law  in  force  in  respect 
to  Americans  in  China. ^^ 

From  the  foregoing  it  will  be  seen  that  while  the  Emperor 
of  China  exercises  nominal  sovereignty  over  all  Chinese 
territory  including  that  occupied  by  the  nationals  of  the 
United  States  and  Great  Britain,  yet  the  jurisdiction  of 
these  two  countries  over  their  own  citizens  who  reside  in 
China  is,  for  all  practical  purposes,  as  full  and  complete  as 
if  China  were  in  fact  territory  belonging  to  these  nations. 

IV. 

We  come  now  to  the  consideration  of  the  main  question 
in  this  case,  namely,  whether  there  be  anything  in  the 
practical  operation  of  the  law  of  extraterritoriality  fatal 
to  the  application  of  the  principles  of  the  American  law 
of  domicil  to  Americans  residing  in  China.  So  far  as  we 
are  able  to  ascertain,  this  question  has  not  been  passed 
upon  by  the  courts  of  the  United  States,  nor  has  it  been 
made  the  subject  of  discussion  by  the  executive  branch  of 
the  government.  It  has,  however,  received  the  careful 
consideration  of  the  courts  of  last  resort  of  Great  Britain 
with  the  unlooked  for  result  that  there  is  now  no  such  thing 
known  to  the  British  law  of  extraterritoriality  as  an  Anglo- 
Chinese  domicil. 

The  leading  case  "''  on  this  subject  originated  in  Shang- 
hai, and  the  facts  were  as  follows:  After  some  previous 
changes  of  residence,  Tootal,  a  subject  of  Great  Britain,  in 
1862  came  to  reside  in  Shanghai,  and  with  the  exception  of 

"  Piggott,   Exterritoriality,   40. 

''  This  view  was  changed  by  the  announcement  of  the  doctrine  of 
Biddle  v.  U.  S.,  post,  p.  120.     Ed. 

''Re  Tootal's  Trusts,  L.  R.  23  C.  D.,  532. 


IN  RE  ALLEN'S  WILL,  AUG.  16,  1907.  99 

some  short  visits  to  England  for  health  and  business,  he 
continued  to  reside  at  Shanghai  until  1878,  the  date  of  his 
death.  It  was  admitted  that  some  years  before  his  death 
he  had  determined  to  reside  permanently  at  Shanghai,  had 
relinquished  all  intention  of  ever  returning  to  England 
and  had  expressed  this  intention  on  a  number  of  oc- 
casions. In  his  will  he  described  himself  as  a  resident  of 
Shanghai  in  the  Empire  of  China.  The  decision  of  the 
Court  was  written  by  Mr.  Justice  Chitty,  who  held  that 
British  subjects  in  eastern  countries  in  all  cases  retain 
their  domicil  in  that  portion  of  the  British  Empire 
in  which  they  were  domiciled  previously  to  taking  up 
their  abode  in  an  eastern  state.  The  decision  is  based 
on  the  proposition  that  residence  in  a  "territory"  is  an  es- 
sential part  of  the  legal  idea  of  domicil,  and  holds  that 

"there  is  no  authority  that  an  individual  can  become  domiciled  as  a 
member  of  a  community  which  is  not  a  community  possessing  the 
supreme  or  sovereign  te}~ritorial  power." 

The  doctrine  thus  laid  down  was  followed  by  the  Court 
in  a  later  case,^'  where  the  decision  was  written  by  Lord 
Watson. 

"Their  Lordships,"  he  says,  "are  satisfied  that  there  is  neither 
principle  nor  authority  for  holdinr-  that  there  is  such  a  thing  as 
domicil  arising  from  society  and  not  from  connexion  with  a  locality. 
In  re  Tootal's  Trusts  is  an  authority  strictly  in  point,  and  their  Lord- 
ships entirely  concur  in  the  reasons  by  which  Mr.  Justice  Chitty  sup- 
ported his  decision  in  that  case." ''" 

While  these  decisions  fix  the  law  of  Great  Britain  on  this 
subject  for  the  present,  the  doctrine  here  laid  down  has 
not  commended  itself  to  the  judgment  of  the  leading  British 
commentators  on  the  subject  of  extraterritoriality.  Sir 
Francis  Piggott,  Chief  Justice  of  Hongkong,  in  a  work 
which  has  just  come  from  the  press,  expresses  the  opinion 

"that  when  the  question  is  again  raised  it  will  be  found  that  the 
principles  established  by  the  most  recent  cases  necessitate  a  recon- 
sideration of  the  law  laid  down  on  the  subject  by  Mr.  Justice  Chitty." 

The  learned  justice  then  enters  upon  an  exhaustive  exam- 

"  Abd-ul-Messih  v.   Farra,   13  App.  Cases,   431. 
''See  also  Maltass  v.  Maltass,  1  Rob.  Ecc,  80;  The  Indian  Chief, 
3  Rob.  Adm.,  29. 


100  I  EXTRATERRITORIAL  CASES. 

ination  of  the  principle  upon  which  the  foregoing  decisions 
are  based,  and  discusses  the  same  as  follows : 

"At  the  time  when  many  of  the  definitions  were  framed,  the  law 
applicable  to  exterritoriality  was  little  known,  and  in  some  cases 
was  not  present  in  the  mind  of  the  judges  who  framed  them.  Local- 
ity and  territory  were  obviously  the  terms  which  would  be  used; 
the  community  among  which  a  person  settled  being  as  obviously 
identified  with  the  locality.  But  it  attached  undue  importance  to 
the  word  to  insist  that  because  'locality'  is  used  in  the  definitions 
in  cases  where  there  could  be  no  question  as  to  its  fitness,  therefore 
it  excluded  the  idea  of  'relationship  to  a  community'  in  the  first 
case  that  came  up  for  argument,  in  which  the  point  was  whether 
'relationship  to  a  community'  is  or  is  not  involved  in  domicil  *  *  =!• 
The  community  referred  to  is  of  course  the  community  which  in- 
habits a  country,  or  a  definite  locality;  in  other  words,  a  community 
which  has  laws  and  customs  of  its  own,  which  the  Government  of 
the  locality  imposes  on  all  members  of  it;  but  the  question  is  wheth- 
er the  reason  of  the  rule,  the  whole  principle  on  which  it  is  based, 
do  not  render  it  as  applicable  to  an  exterritorial  community  as  to 
a  territorial  one.  On  the  hypothesis  the  circumstances  may  be  the 
same  in  the  one  as  in  the  other.  A  man  may  set  up  his  home  in  a 
Treaty  Port,  he  may  have  banished  forever  the  idea  of  returning 
to  his  native  country;  the  animus  manendi  may  be  clear,  without 
shadow  of  doubt;  on  the  hypothesis,  too,  there  is  a  body  of  law 
regulating  the  community.  Why  is  it  impossible  then  for  the  ordi- 
nary principles  of  the  law  to  be  applied,  and  for  the  personal  rela- 
tions of  the  permanent  members  of  the  community  to  come  under 
that  law  permanently  as  the  law  of  the  domicil  of  their  choice:  of 
those  who  are  born  members  of  the  community  as  the  law  of  the 
domicil  of  their  origin?  *  *  *  Linking  these  two  propositions 
together,  it  is  suggested  that  the  inevitable  result  is  a  modification  of 
Lord  Watson's  interpretation  of  the  law  of  domicil  referred  to  above 
on  the  following  lines:  The  law  ivhich  regulates  a  man's  personal 
status  must  be  that  of  the  governing  power  in  whose  dominions 
his  intention  is  permanently  to  reside,  or  must  be  so  recognized  and 
established  by  that  governing  power  as  to  be  in  fact  the  law  of  the 
land."  '" 

The  subject  has  been  carefully  gone  into  by  Hall,-"  the 
celebrated  authority  on  International  Law,  who  likewise 
takes  issue  with  the  Court  in  the  Tootal's  Trusts  case,  and 
expresses  his  view  on  the  subject  as  follows : 

"It  is  perhaps  to  be  regretted  that  a  change  in  the  law  is  not  made 
which  a  short  Order  in  Council  could  easily  efi'ect.     Anglo-Oriental 


'"  Piggott,  Exterritoriality,  228,  230,  232-3. 

"  Foreign    Jurisdiction    of    the    British    Crown,    pp.    184-6. 


IN  RE  ALLEN'S  WILL,  AUG.  16,  1907.  101 

domicil  has  its  reasonable,  it  may  almost  be  said,  its  natural  place. 
Conflicts  between  the  differing  laws  of  England,  of  Scotland,  of  the 
various  self-governing  colonies,  are  inevitable  within  British  jurisdic- 
tion in  the  East;  but  it  is  unnecessary  to  multiply  the  points  of 
collision.  So  long  as  persons  have  not  identified  themselves  with 
the  life  of  a  new  community,  they  must  keep  each  his  own  law; 
but  as  soon  as  they  have  shown  their  wish  and  intention  to  cut 
themselves  adrift  from  the  association  of  birth,  they  prove  their 
indifference  to  the  personal  law  attendant  on  their  domicil  of  origin; 
there  is,  therefore,  no  reason  why  simplicity  and  unity  of  law  should 
not  be  gained  for  British  subjects  by  attributing  community  in  the 
laws  of  England  to  all  of  European  blood.  There  is  also  every  reason 
for  avoiding  very  grave  difficulties  of  another  kind,  which  are  opened 
thru  invariable  preservation  of  the  domicil  of  origin.  English  fam- 
ilies, even  in  the  present  day,  often  remain  thru  more  than 
one  generation  in  Oriental  countries  as  their  permanent  place  of 
abode;  formerly  the  history  of  persons  whose  domicil  might  become 
a  matter  of  importance  was  generally  known  sufficiently  well;  many 
are  now  of  obscure  antecedents  and  of  an  origin  uncertain  among 
the  numerous  places  from  which  British  subjects  can  derive.  As 
no  domicil  can  be  acquired  in  an  Anglo-Oriental  community,  it  be- 
comes every  year  more  probable  that  cases  will  occur  in  which  the 
determination  of  the  domicil  of  a  father,  perhaps  of  a  grandfather, 
may  become  necessary,  and  in  which  it  may  be  equally  impracticable 
to  impute  an  English  domicil  or  to  attribute  any  other  with  fair 
probability.  It  would  be  a  great  advantage  that  in  such  cases  there 
should  be  a  fixed  rule  which  should  correspond  with  the  obvious 
facts,  and  that  the  courts,  instead  of  searching  with  infinite  trouble 
and  expense  for  an  ancestral  domicil,  should  be  enabled  to  find  that 
a  domicil  had  been  acquired  in  the  Eastern  country  which  carried 
with  it  the  application  of  English  law; — that,  in  other  words,  re- 
.sidence  in  China  under  English  law,  with  the  anhmis  manendi,  should 
imply  domicil  in  China  under  the  condition  of  the  applicability  of 
the  special  law  of  the  English  community  established  there,  as  that  law 
is  defined  by  Order  in  Council.  Theoretically  the  conception  of  such 
a  domicil  is  unobjectionable  if  once  the  mind  is  cleared  of  the  notion, 
at  present  dominant,  that  domicil  is  the  creature  of  place  and  inten- 
tion alone.  In  Europe  it  is  so,  because  residence  in  a  place  implies 
subjection  to  the  common  territorial  law,  and  to  no  other;  in  the 
East  it  is  not  necessarily  so,  because  residence  there  implies  subjec- 
tion to  the  law  of  one  or  other  of  several  different  communities,  the 
personal  laws  of  which  receive  equal  recognition  from  the  territorial 
sovereign  power.  Association  with  place  is  necessary  to  domicil; 
but  it  is  not  always  the  sole  determinant  factor.  In  any  case,  even 
if  the  conception  of  domicil  here  suggested  be  anomalous,  the  conven- 
ience of  giving  effect  to  it  is  large  enough  to  excuse  a  certain 
sacrifice  of  logical  principle." 


102  I  EXTRATERRITORIAL  CASES. 

After  a  careful  consideration  of  the  principles  of  law  on 
this  subject  as  well  as  the  practical  demands  of  the  situation, 
this  Court  is  inclined  to  give  greater  weight  to  the  foregoing 
argument  of  Mr.  Hall  than  to  the  line  of  reasoning  adopted 
by  Mr.  Justice  Chitty  in  the  Tootal's  Trusts  case.     We  can 
see  no  good  reason  for  holding  that  a  citizen  of  the  United 
States  cannot  be  domiciled  in  China.     Mr.  Justice  Chitty's 
decision  destroys  in  their  application  to  China  all  the  def- 
initions   of   domicil    contained    in   the    books.     It    ignores 
both  of  the  essential  elements  of  residence  and  intention. 
The  British  Courts  were  correct  when  they  stated  that  there 
was  no  authority  for  holding  that  an  individual  could  not 
become  domiciled  as  a  member  of  a  community  which  was 
not   one   possessing  the   supreme   or   sovereign   territorial 
power.     This  fact,  however,  is  without  significance  when 
it  is  noted  that  the  courts  were  considering  the  first  case 
of  this  character  which  had  ever  been  presented  for  judicial 
determination.     At  the  time  the  Tootal's  Trusts  case  came 
up  for  consideration,  the  British  law  of  extraterritoriality 
was  not  so  well  developed  as  it  is  now,  and  the  subsequent 
trend  of  events  has  given  it  a  difl'erent  meaning  from  what 
it  had  at  the  time  the  decision  was  rendered.     It  was  quite 
natural  for  the  courts  thirty  years  ago  to  announce  that 
the  immiscible  character  of  the  two  races  and  the  radical 
difference  between  the  religions,  customs,  habits  and  laws 
of  peoples  of  the  two  countries  raised  a  strong  presumption 
against  the  British  subject  becoming  domiciled  in  China, 
At  that  time  it  was  doubtless  the  fixed  purpose  of  the  ma- 
jority of  those  who  came  to  China  to  sojourn  here  only  a  few 
years  and  then  return  to  the  country  from  which  they  came. 
This  is  not  the  case  at  present.     Many  families  dwell  here 
now  with  the  fixed  purpose  of  making  China  their  perma- 
nent home.     There  are  abundant  examples  of  such  families 
and  they  are  likely  to  become  more  common  in  the  future. 
By  reason  of  this  fact  the  number  of  heirs  and  distributees 
of  foreign  citizens  decedent  in  China  who  live  in  China  in 
proportion  to  those  who  dwell  in  the  countries  from  which 
said  foreigners  came,  is  rapidly  growing  larger,  thus  neces- 


IN  RE  ALLEN'S  WILL,  AUG.  16,  1907.         103 

sitating  the  adoption  of  a  rule  which  will  meet  the  practical 
demands  of  the  situation. 

From  the  standpoint  of  expediency,  Hall  has  very  clearly 
pointed  out  that  conflicts  between  the  laws  of  England, 
Scotland  and  various  self-governing  colonies  are  inevitable 
within  British  jurisdiction  in  the  East.  This  proposition 
is  too  clear  to  require  the  support  of  argument.  If  this 
Court  should  adopt  the  rule  laid  down  by  the  British  Courts, 
such  conflicts  would  be  perhaps  more  numerous  and  more 
pronounced  in  the  administration  of  American  law  in  China 
than  in  administration  here  of  the  law  of  Great  Britain. 
The  adoption  of  such  a  rule  would  put  this  Court  to  the 
necessity  in  the  matter  of  probating  wills  of  applying  the 
laws  of  forty-six  ^^  different  commonwealths,  to  say  nothing 
of  the  laws  of  our  territories  and  insular  possessions.  This 
would  be  practically  impossible.  Furthermore,  the  adop- 
tion of  the  British  rule  would  require  this  Court  not  only  to 
hold  that  Dr.  Allen,  who  had  resided  in  China  for  forty-seven 
years  and  who  had  expressed  his  intention  of  residing  here 
permanently,  was  domiciled  in  Georgia,  but  also  to  hold  that 
his  children  and  grandchildren,  some  of  whom  have  never 
been  in  Georgia,  and  who  never  expect  to  reside  there,  are 
nevertheless  domiciled  in  that  State.  This  proposition  is  too 
extravagant  to  be  maintained.  It  requires  a  greater  stretch 
of  the  imagination  and  the  adoption  of  a  greater  fiction  of 
law  to  hold  that  a  person  can  be  domiciled  in  a  country  where 
he  does  not  reside  and  has  no  intention  of  residing  at  any 
future  time  than  to  hold  that  a  citizen  of  a  foreign  State  can 
acquire  an  extraterritorial  domicil  in  a  community  which 
is  not  the  community  possessing  the  sovereign  territorial 
power.  Every  consideration  of  reason  and  convenience 
demands  that  the  American  law  of  domicil  be  applied  by 
American  Courts  in  China. 

We  hold  therefore: 

1.  That  there  is  nothing  in  the  theory  or  practical  op- 
eration of  the  law  of  extraterritoriality  inconsistent  with 
or  repugnant  to  the  application  of  the  American  law  of 


Now  forty-eight,  besides  the   District  of   Columbia.     Ed. 


104  I  EXTRATERRITORIAL  CASES. 

domicil  to  American  citizens  residing  in  countries  with 
which  the  United  States  has  treaties  of  extraterritoriality. 
2.  That  Dr.  Young  J.  Allen,  having  lived  in  China  for 
a  period  of  forty-seven  years  and  having  expressed  his 
intention  to  live  here  permanently,  thereby  acquired  an 
exti^aterritorial  domicil  in  China;  consequently  this  Court 
in  the  administration  of  his  estate  will  be  guided  by  the 
law  which  Congress  has  extended  to  Americans  in  China, 
which  is  the  common  law." 

"-  Mr.  Huberich  ^  thinks  that  "The  result  of  the  case  is  correct.  But 
the  reasons  supporting  it  are  not  very  clearly  stated;  there  is  a 
tendency  to  confuse  the  question  as  to  the  amount  of  evidence  neces- 
sary to  overcome  the  presumption  against  the  acquisition  of  a  domicil 
in  China  with  the  question  of  legal  possibility  of  acquiring  such  a 
domicil   under  any  circumstances." 

Nevertheless,  the  "result"  has  been  accepted  not  only  in  the  United 
States "  but  also  in  the  very  jurisdiction  (England)  where  the  contrary 
doctrine  arose.  For  In  re  Tootal's  Trusts,  23  Ch.  Div.,  532,  and  its 
corresponding  dicta  have  been  overruled  and  the  doctrine  here  an- 
nounced by  Judge  Wilfley  is  now  that  of  the  House  of  Lords,  the 
highest  judicial  tribunal  of  the  British  Empire. 

Casdagli  v.  Casdagli,  A.  C.  (1919),  145,  was  a  proceeding  by  a 
wife  for  dissolution  of  marriage,  originally  brought  in  the  High 
Court  in  England,  against  the  husband  residing,  then  for  twenty- 
one  years,  in  Egypt,  intending  to  remain  and  claiming  domicil  there. 
Counsel  for  the  wife  contended  that,  such  domicil  could  not  be  ac- 
quired and,  on  the  authority  of  the  cases  above  referred  to,  both  the 
High  Court  and  the  Court  of  Appeal  ^  sustained  this  contention.  But 
the  House  of  Lords  reversed  both  Courts  and  dismissed  the  petition 
with  costs. 

The  Lord  Chancellor  (Finlay)  cited  Mather  v.  Cunningham  (post, 
p.  136).     In  re  Allen's  Will    {ante,  p.  92)    and  said: 

"What  the  petitioners  contended  for  in  Tootal's  Trusts  was  what 
is  there  called  an  Anglo-Chinese  domicil.  Some  criticism  has  been 
bestowed  upon  this  and  analogous  expressions,  but  it  appears  to 
me  that  the  expression  Anglo-Chinese  domicil  is  apt  to  denote  com- 
pendiously a  domicil  in  China  acquired  by  a  British  subject  and  carry- 
ing with  it  the  privileges  conferred  by  treaty  upon  British  subjects 
there  residing.     These  privileges  appear  to  have  been   analogous  to 


^  Domicil  of  Privileged  Foreigners,  Law  Quarterly  Review,  XXIV, 
447.  See  also  Dickinson,  The  Domicil  of  Persons  Residing  Abroad 
Under  Consular  Jurisdiction,  Mich.   Law  Rev.,  XVII,  437. 

•Mather  v.  Cunningham   (post),  p.  136. 

=*  Casdagli  v.  Casdagli,  87  L.  J.  P.,  73. 


CASDAGLI  V.  CASDAGLI,  1919.  105 

those  enjoyed  by  British  subjects  residing  in  Egypt.  At  p.  536 
Chitty,  J.,  says  that  the  exception  from  the  jurisdiction  of  His 
Majesty's  Supreme  Court  at  Shanghai  as  a  matrimonial  Court  in 
regard  to  dissolution,  nullity,  or  jactitation  of  marriage,  apparently 
left  Englishmen  subject  to  the  jurisdiction  of  the  Court  for  matri- 
monial causes  in  England  in  respect  of  such  matters.  This  state- 
ment requires  qualification.  The  absence  of  provision  for  divorce 
in  Shanghai  cannot  of  itself  confer  jurisdiction  upon  the  English 
Court;  it  depends  upon  the  question  whether  the  domicil  has  re- 
mained English.  If  the  English  domicil  has  been  replaced  by  an 
Anglo-Chinese  one  the  jurisdiction  of  the  English  Courts  w^ould  be 
gone.     *     *     * 

The  decision  is,  of  course,  not  binding  upon  this  House,  and  it  is, 
in  my  opinion,  erroneous.  There  has  been  no  such  general  acqui- 
escence in  the  correctness  of  the  decision  in  In  re  Tootal's  Trusts, 
and  change  of  position  in  reliance  upon  that  decision,  as  to  render 
it  improper  that  this  House  should  act  upon  its  own  view  of  the 
law.     *     *     * 

The  fact  that  inconvenience  has  resulted  from  a  particular  deci- 
sion would  of  course  be  no  reason  for  disturbing  it,  if  sound  in  law. 
But,  as  in  my  opinion  Tootal's  case  and  the  dicta  approving  it  are 
erroneous,  I  think  that  the  British  community  in  Egypt  should  be 
relieved  from  the  inconvenience  which  Cator,  P.  says  *  has  been 
thereby  caused." 

Lord  Dunedin  said : 

"As  to  authority,  the  matter  is  reduced  to  two  cases.  In  re  Tootal's 
Trusts  and  Abd-ul-Messih.''  Neither  of  those  cases  is  technically 
binding  on  your  Lordships,  but  I  will  for  the  moment  treat  them 
as  if  they  were  so.  I  do  not  set  forth  the  facts,  as  that  has  already 
been  done  by  the  noble  Lords  who  preceded  me.  In  re  Tootal's  Trusts 
can  be  no  authority  for  the  proposition  contended  for  because  all 
that  it  actually  decided  was  that  mere  enrolment  as  a  member  of  a 
British  community  in  China,  to  which  community  certain  privileges 
were  by  treaty  conceded,  did  not  per  se  create  for  the  person  so 
enrolled  an  Anglo-Chinese  domicil.  The  fact  that  in  that  case  Tootal 
had  no  Chinese  domicil  was  based  on  admission,  and  therefore  pos- 
sibility had  not  to  be  considered.  Apart  from  the  actual  decision 
I  cannot  say  that  I  approve  of  the  remarks  of  Chitty,  J.  Nor  am  I 
able  to  follow  the  noble  Viscount  in  thinking  that  all  that  he  meant 
was  that  a  Chinese  domicil  was  such  an  improbable  domicil  for  an 
Englishman  to  adopt  that  he  would  not  easily  be  brought  to  think 
that  it  had  been  adopted.  I  think  the  American  Court  in  Mather's 
case  were  right  upon  the  facts  to  refuse  to  follow  what  would 
seemingly  have  been  Chitty,  J.'s  opinion.  Further,  I  am  quite  clear 
that  the  head  note  in  Abd-ul-Messih  goes  too  for  in  saying  'Tootal's 
Trusts  approved.'  The  approval  given  by  the  Judicial  Committee 
was,  as  I  read  the  judgment,  limited  to  the  proposition^which  indeed 
I  think  no  one  now  disputes — that  mere  membership  of  a  privileged 
community  will  not  per  se  constitute  domicil." 

Lord  Philirnore  said: 

"My  Lords,  the  jurisdiction  of  the  High  Court  of  Justice  in  its 
matrimonial  division  is  founded  upon  domicil.  The  domicil  must  be 
in    England. 


'In  The  Dcrfflinger  (No.  1),  3  Brit.  &  Col.  Prize  Cas.,  389   (1916), 
=  13  App.  Cas.,  431. 


106  I  EXTRATERRITORIAL  CASES. 

In  this  case  the  husband  who  has  been  sued  by  his  wife  had,  no 
doubt,  his  domicil  of  orij^in  in  England  and  the  burden  lies  upon 
him,  as  he  disputes  the  jurisdiction,  to  show  that  he  has  acquired 
another  domicil.  But  Horridge,  J.  has  found,  and  it  is  not  disputed 
that  he  has  rightly  found,  that  if  it  be  possible  for  the  husband  to 
have  changed  his  domicil  of  origin  into  an  Egyptian  domicil  he  has 
done  so.  I  think  also  that  if  Horridge,  /.  had  not  felt  himself 
fettered  by  authority  he  would  have  held  that  there  was  no  impos- 
sibility in  the  husband's  acquiring  an  Egyptian  domicil." 

After  referring  to  the  contrary  authorities  he  continued : 

"These  decisions,  or  at  any  rate  the  principles  supposed  to  be 
extracted  from  them,  have  been  commented  upon  and  dissented  from 
in  an  important  decision  of  the  Supreme  Court  of  Maine:  Mather 
V.  Cunningham.  It  is  true  that  in  two  cases  in  the  Egyptian  Prize 
Court  the  learned  Judges  have  given  their  adhesion  to  them.  But, 
on  the  other  hand,  in  The  Etimaeus "  the  President  expressly  reserved 
his  opinion  upon  the  principle  supposed  to  be  extracted  from  In  re 
Tootal's  Trusts.     *     *     * 

Under  the  capitulations  and  the  subsequent  treaties  and  arrange- 
ments with  Turkey,  with  Egypt  under  the  Khedive  as  still  a  part 
of  the  Ottoman  dominions,  with  Egypt  now  as  a  protected  State, 
and  under  the  analogous  arrangements  which  exist  in  China  and 
at  one  time  existed  in  Japan  and  Zanzibar,  Europeans  of  many 
nations,  including  the  British,  have  peculiar  privileges  and  some  im- 
munities, the  measure  of  which  is  to  be  found  in  the  expressed 
terms  of  the  several  grants.  In  so  far  as  it  may  be  said  that  the 
effect  of  them  is  to  constitute  separate  little  national  communities, 
this   is   immaterial    on   the    question    of    domicil. 

The  result  is  that  while  there  is  authority  for  saying  that  there 
is  improbability  in  the  change  of  domicil  to  an  Oriental  country, 
even  a  so  highly  civilized  one  as  Egypt,  there  is  no  legal  impossibility." 

Previous  to  the  decision  in  the  principal  case  Judge  Wilfley  had 
held '  that  the  United  States  Court  for  China  had  inherited  jurisdic- 
tion in  probate  and  administration  cases  from  the  consular  courts 
and  that 

"since  neither  the  general  laws  of  the  United  States  nor  the  laws 
relating  in  particular  to  extraterritorial  jurisdiction  contain  specific 
pi'ovisions  on  the  administration  of  estates,  and  since  the  Minister 
has  issued  no  regulations  on  the  subject,  it  followed  that  the  only 
source  from  which  jurisdiction  might  be  drawn  was  the  common  law." 

The  doctrine  subsequently  announced  by  the  Court  of  Appeals  * 
provided  other  "specific  provisions  on  the  administration  of  estates" 
which  have  since  been  applied  by  the  United   States  Court. 

Moreover  the  reservation  by  the  United  States  in  the  original 
treaty  with  China  of  "all  questions  in  regard  to  rights,  whether  of 
person  or  property"  *  and  the  grant  to  the  consuls  of  "all  the  judicial 
authority  necessary  to  execute  the  provisions  of  said  treaty     *     *     ♦ 

'1  Brit.  &  Col.  Prize  Cas.,  615. 

'/«  re  John  Pratt  Roberts'  Will,  May   15,   1907. 

"  Biddle  v.  United  States,  post,  p.  120. 

"  Treaty  of  1844,  art.  XXI,  Malloy,  Treaties,  I,  202. 


BROOKS  V.  IRVINE  ET  AL.,  AUG.  21,  1907.      107 

in  regard  to  civil  rights"  ^^  would  seem  to  include  probate  jurisdiction 
and  afford  a  sufficient  basis  for  its  exercise  without  needing  to  in- 
v'oke  the  common  law." 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Francis  M.  Brooks,  Plaintiff,  v.  P.  W.  Irvine,  C.  W.  Mead 
and  The  International  Banking  Corporation,  De- 
fendants. 

[Civil  action  No.  39;  filed  August  21,  1907.] 

SYLLABUS. 

(By    the  Editor.) 

EQUITABLE  ASSIGNMENT:  PRIORITY  OF  LlENS.  An  order  upon  a 
specific  fund  in  bank  creates  thereon  an  equitable  lien  which 
prevails  over  a   subsequent  attachment. 

Lorrin  Andrews,  Esq.,  for  plaintiff. 
Arthur  Bassett,  Esq.,  for  defendant. 

WiLFLEY,  J.: 

On  or  about  July  29, 1905,  defendant  Mead  borrowed  from 
plaintiff  the  sum  of  Mex.  $2,750  and  executed  a  promissory 
note  which  recited  that  the  same  was  for  value  received, 
and  that  the  sum  would  be  returned  within  sixty  days ;  but 
it  was  not.  On  October  31,  1906,  Mead  gave  an  order  on  the 
International  Banking  Corporation  at  Shanghai  in  which 
he  directed  said  Banking  Corporation  to  "pay  to  the  order 
of  Francis  M.  Brooks  the  sum  of  $3,025,  as  soon  as  the 
money  you  have  of  mine  is  released  from  the  Standard  Oil 
Company  bond."  Plaintiff  testified  that  he  received  this 
order  in  due  course,  and  immediately  upon  its  receipt  he 
presented  it  to  said  International  Banking  Corporation  at 
Shanghai.  On  or  about  December  31,  1906,  the  manager 
of  said  Banking  Corporation  informed  plaintiff  that  the 
money  referred  to  in  the  order  of  the  defendant  Mead  was 
not  available.  It  appears  that  the  International  Banking 
Corporation  had  become  surety  for  Mead  on  a  certain  bond 


"9  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  140,  sec.  3;  12  U.  S.  Stats. 
at  Large,  Sess.  I,  Ch.  179,  sec.  3. 

"  See  In  re  Estate  of  Alberta  C.  K.  Fitch  and  Yao  Sui  Dong  v. 
American  Food  Mfg.  Co.,  Ltd.,  post,  p.  869. 


108  I  EXTRATERRITORIAL  CASES. 

which  the  latter  had  executed  to  the  Standard  Oil  Company 
of  New  York,  and  in  order  to  protect  said  Banking  Cor- 
poration against  any  loss  which  might  result  by  reason  of 
this  transaction,  Mead  had  agreed  that  said  bank  should 
hold  a  certain  fund  which  he  had  deposited  with  said  bank. 
The  testimony  showed  that  at  the  date  of  filing  this  suit, 
the  Standard  Oil  Company  bond  had  been  cancelled  snd 
the  claim  of  said  International  Banking  Corporation  to  the 
special  fund  above  referred  to,  relinquished ;  also  that  upon 
the  application  of  defendant  Irvine,  an  alleged  creditor  of 
Mead,  the  United  States  Court  for  China  issued  an  attach- 
ment against  the  funds  of  Mead  in  the  hands  of  said  Inter- 
national Banking  Corporation,  and  as  a  result  thereof,  all 
of  the  moneys  which  Mead  had  on  deposit  in  said  bank  were 
transferred  to  the  account  of  the  Marshal  of  the  United 
States  Court  for  China. 

In  view  of  the  foregoing  facts,  namely,  that  said  C.  W. 
Mead  was  indebted  to  the  plaintiff  in  the  amount  claimed 
in  the  petition,  and  that  he  had  given  an  order  to  the  plain- 
tiff on  the  International  Banking  Corporation  for  the  pay- 
ment of  the  same  out  of  a  special  fund  belonging  to  said 
Mead  held  by  said  Banking  Corporation,  the  Court  finds 
that  said  order  created  an  equitable  lien  upon  said  special 
fund.i 

It  is  therefore  ordered  that 

1.  The  attachment  issued  by  the  Court  upon  the  applica- 
tion of  P.  W.  Irvine  be  dismissed ; 

2.  The  Marshal  transfer  said  funds  which  have  been  de- 
posited in  his  name  as  a  result  of  the  attachment,  to  the 
International  Banking  Corporation; 

3.  Said  International  Banking  Corporation  pay  to  plain- 
tiff the  sum  of  $3,025  Mexican ; 

4.  Defendant  pay  the  costs. 


'In  National  Bank  v.  Millard,  10  Wall.  (U.  S.),  152,  19  L.  ed., 
897,  the  Supreme  Court  held  that  the  holder  of  a  check  could  not 
sue  the  bank  thereon  unless  it  had  been  accepted.  See  also  First 
Nat.  Bank  v.  Whitman,  94  U.  S.,  343,  24  L.  ed.,  229;  Basket  v.  Hassell, 
107  U.  S.,  602,  27  L.  ed.,  500;  Phoenix  Bank  v.  Risley,  11  U.  S.,  125, 
28  L.  ed.,  374.  The  contrary  view  is  presented  in  Fonner  v.  Smith, 
31  Neb.,  107.     Ed. 


CUNNINGHAM  V.  RODGERS,  AUG.   19,   190  7.  109 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Albert  W.  Cunningham,  Administrator,  Plaintiff,  v.  James 
Linn  Rodgers,  Consul-General  of  the  United  States  at 
Shanghai,  China,  Defendant. 

[Civil  action  No.  33;  filed  August  19,  1907.] 

SYLLABUS. 
(By  the   Court  and  the  Editor.) 

1.  ADMINISTRATION  OF  ESTATES:  JURISDICTION.     China,  in  so  far  as 

the  administration  of  estates  of  Americans  decedent  therein  is 
concerned,  is  a  separate,  distinct  and  complete  jurisdiction,  similar 
to  that  of  one  of  the  unorganized  territories  of  the  United 
States. 

2.  Id.  :  The  Personal  Representative's  Authority  is  limited  to  the 

jurisdiction  wherein  the  Letters  were  issued. 

Geo.  F.  Curtis,  Esq.,  for  plaintiff. 
Arthur  Bassett,  Esq.,  for  defendant. 

Wilfley,  J.: 

The  question  raised  by  the  plea  in  abatement  filed  herein 
is  whether  an  administrator  appointed  in  the  State  of  Maine 
can,  in  his  capacity  as  such,  prosecute  a  suit  in  the  extra- 
territorial jurisdiction  of  China. 

The  pleadings  in  this  case  disclose  that  on  June  10,  1905, 
Henry  H.  Cunningham,  an  American  citizen,  died  at  Shang- 
hai, China,  leaving  a  will  in  which  Edward  H.  Dunning  was 
named  as  executor.  On  June  26,  1905,  Edward  H.  Dunning 
presented  said  will  to  the  American  Consular  Court  at 
Shanghai  for  probate.  Consul-General  James  Linn  Rod- 
gers, sitting  as  Judge,  admitted  the  will  to  probate  and 
confirmed  said  Edward  H.  Dunning  as  executor.  The 
estate  was  then  administered  by  said  executor  under  the 
direction  of  said  Consular  Court,  in  accordance  with  the 
provisions  of  the  will.  On  May  17,  1907,  Albert  W.  Cun- 
ningham, administrator  of  the  estate  of  Henry  H.  Cunning- 
ham in  the  State  of  Maine,  filed  suit  against  James  Linn 
Rodgers,  Consul-General  of  the  United  States  at  Shanghai, 
China,  charging  him  with  negligence  and  misconduct  in 
office  in  this,  that  said  James  Linn  Rodgers  administered 
the  estate  of  said  Henry  H.  Cunningham  in  his  judicial  ca- 


110  I  EXTRATERRITORIAL  CASES. 

pacity,  and  not  in  his  capacity  as  Consul-General  in  ac- 
cordance with  the  provisions  of  sections  1709,  1710  and 
1711  of  the  Revised  Statutes  of  the  United  States  and 
asked  for  a  judgment  against  said  James  Linn  Rodgers  in 
the  sum  of  $58,165.85. 

In  abatement  of  this  suit  defendant  files  a  plea  in  which 
he  contends  that  said  plaintiff  Albert  W.  Cunningham, 
being  the  administrator  of  the  estate  of  Henry  H.  Cunning- 
ham in  the  State  of  Maine  only,  is  without  right  or  author- 
ity in  his  capacity  as  such  administrator  to  prosecute  a  suit 
of  any  character  in  the  extraterritorial  jurisdiction  of 
China. 

It  is  manifest  from  the  facts  recited  in  the  petition  that 
Consul-General  Rodgers  entertained  the  view  that  he,  as 
Judge  of  the  Consular  Court  sitting  in  Shanghai,  had  juris- 
diction under  the  common  law  to  probate  wills  and  ad- 
minister the  estates  of  Americans  decedent  in  China,  and 
that  he  was  of  the  opinion  that  Henry  H.  Cunningham  was 
a  citizen  of  the  United  States  domiciled  in  China.     *     *     * 

This  Court  has  held  that  it  has  jurisdiction  to  probate 
wills  and  administer  estates  of  Americans  decedent  in  China 
in  accordance  with  the  provisions  of  the  common  law,  that 
prior  to  the  inauguration  of  this  Court,  the  American  Con- 
sular Courts  in  China  were  clothed  with  the  same  juris- 
diction '  and  that  an  American  citizen  may  be  domiciled  in 
China. - 

The  significance  of  the  foregoing  decisions  is  that  under 
the  treaties  of  extraterritoriality  in  force  between  the 
United  States  and  China  and  the  Acts  of  Congress  passed 
pursuant  thereto,  and  for  the  purpose  of  carrying  the  same 
into  full  force  and  effect,  China,  in  so  far  as  the  adminis- 
tration of  the  estates  of  Americans  decedent  therein  is 
concerned,  is  a  separate,  distinct  and  complete  jurisdiction, 
similar  to  that  of  an  unorganized  territory  belonging  to 
the  United  States. 

The  law  on  the  question  raised  by  defendant's  plea  in 
abatement  is  clear.     The  authorities  all  hold  that  the  right 

^In  re  Roberts'  Will,  No.  10;  May  15,  1907. 
"  In  re  Young  John  Allen's  Will,  ante,  p.  92. 


CUNNINGHAM  V.  RODGERS,  AUG.  19,  1907.  HI 

of  an  administrator  of  an  estate  does  not  go  beyond  the 
limits  of  the  state  in  which  he  is  appointed. 

"The  plaintiff  certainly  cannot  maintain  this  bill  as  administrator 
of  Stewart,  even  if  the  bill  can  be  construed  as  framed  in  that  aspect; 
because  he  admits  that  he  has  never  taken  out  letters  of  administra- 
tion in  New  York;  and  the  letters  of  administration  granted  to  him 
in  Michigan  confer  no  power  beyond  the  limits  of  that  state  and 
cannot  authorize  him  to  maintain  any  suit  in  the  courts,  either  state 
or  national,  held  in  any  other  state."  ^ 

"The  first  plea  puts  in  issue  the  representative  character  of  the 
plaintiff  in  the  state  of  Wisconsin.  It  denies  that,  as  to  the  causes 
of  action  stated  in  the  declaration,  he  is  or  ever  has  been  adminis- 
trator of  the  effects  of  the  deceased,  and  thus  raises  the  question 
whether  an  administrator,  appointed  in  one  state,  can,  by  virtue  of 
such  appointment,  maintain  an  action  in  another  state  to  enforce 
an  obligation  due  his  intestate.  And  upon  this  subject  the  law  is 
well  settled.  All  the  cases  on  the  subject  are  in  one  way.  In  the 
absence  of  any  statute  giving  effect  to  the  foreign  appointment,  all 
the  authorities  deny  any  efficacy  to  the  appointment  outside  of  the 
territorial  jurisdiction  of  the  state  within  which  it  was  granted.  All 
hold  that  in  the  absence  of  such  a  statute  no  suit  can  be  maintained 
by  an  administrator  in  his  official  capacity,  except  within  the  limits 
of  the  state  from  which  he  derives  his  authority.  If  he  desires  to 
prosecute  a  suit  in  another  state  he  must  first  obtain  a  grant  of 
administration   therein   in  accordance   with   its   laws."  * 

In  view,  therefore,  of  the  foregoing-,  we  hold  that  Albert 
W.  Cunningham  as  administrator  of  the  estate  of  Henry  H. 
Cunningham,  appointed  by  the  courts  of  the  State  of  Maine, 
is  without  authority  to  prosecute  this  action. 

The  plea  in  abatement  is  sustained.'^ 

'Johnson  v.  Powers,  139  U.  S.,  156,  35  L.  ed.,  112. 

'  Noonan  v.  Bradley,  9    Wall.  (U.  S.),  394,  19  L.  ed.,  757. 

'In  the  earlier  Estate  (No.  30)  of  W.  N.  Pethick,  deceased,  the 
same  Judge,  by  an  order  of  April  3,  1907,  appointed  an  administra- 
tor in  China,  though  one  had  already  been  named  by  the  Courts  of 
New  York  for  decedent's  estate  there. 

In  Cunningham  v.  Rodgers,  Wash.  L.  Rep.,  XLVIII,  216,  action 
against  the  same  defendant  was  instituted  in  the  Supreme  Court  of 
the  District  of  Columbia,  which  sustained  a  demurrer  for  want  of 
jurisdiction.  This  ruling  was  upheld  by  the  Court  of  Appeals  (March 
1,  1920)  on  the  ground  that  under  Rev.  Stats.,  sec.  1697,  only  the 
administrator  could   maintain   the   action. 


112  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
ToEG  &  Read,  Plaintiffs,  v.  Thomas  Suffert,  Defendant. 

[Civil  action  No.  28;  filed  September  3,  1907.] 

SYLLABUS. 

(By  the  Editor.) 

1.  WAGERING  CONTRACTS,  while  enforcible  at  common  law,  are  void 

under  the  decisions  of  the  American  Courts,  Federal  and  state. 

2.  Id.  :  Evidence  examined  and  found  to  show  that  the  contract  sued 

arose  in  a  wager. 

Stirling  Fessenden,  for  plaintiff. 
A^.  C.  Home,  for  defendant. 

WiLFLEY,   J.: 

This  is  a  suit  brought  by  Toeg  &  Read,  a  firm  of  stock- 
brokers in  Shanghai,  against  T.  Suffert,  an  American 
citizen,  on  a  note  for  Tls.  4,949  given  in  payment  of  losses 
sustained  by  the  latter  as  a  result  of  a  transaction  in  shares 
on  the  Shanghai  Stock  Exchange,  in  which  Toeg  &  Read 
acted  as  Suffert's  agents. 

The  history  of  the  transaction,  according  to  the  testimony, 
is  as  follows:  On  April  15,  1920,  defendant  gave  plaintiffs 
an  order  for  the  purchase  of  seventy-five  "Farnham  Boyd" 
shares,  which  order  was  executed  by  the  latter  who  paid  for 
the  said  shares  at  the  rate  of  Tls.  267^  per  share.  These 
shares  were  purchased  for  the  "July  Settlement."  They 
were  sold  under  instructions  from  defendant  on  July  twenty- 
sixth  at  Tls.  190  per  share.  The  net  loss  sustained,  after  de- 
ducting interest,  commissions,  and  other  small  items,  was 
Tls.  4,949.  On  August  31,  1902,  Suffert  executed  the  fol- 
lowing note  to  plaintiffs: 

"Shanghai,  August  31,  1902. 
On  demand  I  promise  to  pay  to  the  order  of  Messrs.  Toeg  &  Read 
the   sum   of   Taels   Four   Thousand   Nine   Hundred  and   Forty  Nine, 
Shanghai  Sycee,  for  value  received. 
Tls.  4,949. 

(Sgd.)     T.  Suffert." 

Demand  having  been  made  upon  the  foregoing  note  and 
payment  refused,  suit  was  instituted  in  this  Court  on  said 


TOEG  &  READ  V.  SUFFERT,  SEPT.  3,1907.       113 

note  on  May  6,  1907.  Defendant  in  his  answer  filed  herein 
admits  the  execution  of  said  note,  but  denies  liability  under 
it  on  the  ground  that  the  obligation  in  satisfaction  of  which 
it  was  given  grew  out  of  a  transaction  on  the  Shanghai 
Stock  Exchange  which  was  in  fact  and  in  law  a  gambling 
transaction,  and  for  this  reason  the  alleged  obligation  is 
illegal  and  void. 

The  foregoing  facts  are  undisputed.  The  main  fact  in 
dispute  is  whether  the  transaction  was  intended  to  be  in 
the  nature  of  an  investment  or  a  settlement  on  differences. 
Plaintiffs  allege  that  they  were  ignorant  of  defendant's 
intention  in  the  matter,  while  defendant  contends  that  it 
was  his  purpose  to  enter  upon  a  purely  speculative  venture 
and  that  this  purpose  was  made  known  to  the  plaintiffs  at 
the  time  the  orders  were  given. 

The  Act  of  June  30,  1906,  creating  this  Court,  author- 
izes it  to  apply  the  laws  of  the  United  States  now  in  force 
in  the  Consular  Courts  in  China,  and  when  such  laws  are 
deficient  "the  common  law  and  the  law  as  established  by  the 
decisions  of  the  Courts  of  the  United  States  shall  be  applied 
by  said  Court  in  its  decisions  and  shall  govei^n  the  same." 
This  Court  has  defined  the  common  Jaw,  to  mean  the 
common  law  of  England  and  the  statutes  passed  in  aid 
thereof  which  were  adapted  to  the  situation  of  the  Amer- 
ican colonies  at  the  date  of  transfer  of  sovereignty  "as  mod- 
ified, applied,  and  developed  generally  by  the  decisions  of 
the  state  courts  and  the  decisions  of  the  United  States 
Courts,  and  incorporated  generally  into  the  statutes  and 
constitutions  of  the  States."^ 

It  will  be  seen  that  this  Court  will  only  enforce  those 
principles  of  the  common  law  which  have  been  introduced 
generally  into  the  laws  of  the  various  states  of  the  Union, 
and  which,  in  the  language  of  Chief  Justice  Marshall,  "form 
the  substratum  of  the  laws  of  every  state,"  so  that  in  the 
case  under  consideration  it  will  not  be  sufficient  to  show  what 
the  common  law  rule  relating  to  gambling  and  wagering 
laws  was  at  the  date  of  the  transfer  of  sovereignty  unless 

*  U.  S.  V.  Biddle,  ante,  p.  84. 

14008  O.  W. 8 


1X4  I  EXTRATERRITORIAL  CASES. 

it  also  be  shown  that  said  rule  has  been  incorporated  gen- 
erally into  the  law  of  the  various  states  of  the  Union  and 
applied  generally  by  our  state  and  federal  courts.  The  act 
creating  this  Court  provides  in  terms  that  the  law  estab- 
lished by  the  decisions  of  the  courts  of  the  United  States 
shall  be  applied  by  this  Court. 

An  examination  of  the  authorities  will  disclose  the  fact 
that  the  rule  of  law  relating  to  stock  exchange  transactions 
as  found  generally  in  the  statutes  of  the  states  and  as 
applied  and  developed  generally  by  the  decisions  of  the 
state  courts  and  of  the  United  States  Courts,  is  clear  and 
well  established.  Nearly  all  of  the  states  of  the  Union 
have  enacted  statutes  covering  this  subject,  which  make 
trading  on  the  stock  exchange  on  "margins,"  on  "future 
delivery,"  or  with  view  to  "settlement  on  differences," 
gambling  contracts  and  hence  illegal  and  void. 

Great  Britain  has  also  enacted  statutes  on  this  subject.^ 
Sir  John  Barnard's  Act  dealt  with  the  "infamous  practice 
of  stock-jobbing,"  and  was  more  particularly  directed  to 
wagers  on  the  price  of  stock,  or,  as  they  are  sometimes 
called,  "agreements  to  pay  differences."  This  was  followed 
by  the  Statute  of  8  &  9  Victoria,  c.  109,  s.  18,  which 
provides 

"that  all  contracts  or  agreements,  whether  by  parol  or  in  writing, 
by  way  of  gambling  or  wagering,  shall  be  null  and  void;  and  that 
no  suit  shall  be  brought  or  maintained  in  any  court  of  law  or 
equity  for  recovering  any  sum  of  money  or  valuable  thing  alleged 
to  be  won  upon  any  wager,  or  which  should  have  been  deposited 
in  the  hands  of  any  person,  to  abide  the  event  on  which  any  wager 
should  have  been  made." 

Interpreting  this  act,  the  English  Courts,  while  holding 
that  a  transaction  on  the  stock  exchange  with  view  to 
settlement  on  differences  was  a  wagering  contract  which 
could  not  be  enforced  between  the  principals,  decided  that 
a  contract  between  one  of  the  parties  to  the  transaction 
and  his  broker  by  which  the  broker  incurred  liabilities  for 
his  principal  while  acting  in  conformity  to  the  rules  of  the 

^  The  most  important  are  Sir  John  Barnard's  Act,  7  George  II, 
c.  8,  and  8  &  9  Victoria,  c.  109,  s.  18. 


TOEG  &  READ  V.  SUFFERT,  SEPT.  3,  1907.       115 

stock  exchange,  was  not  a  gambling  contract  within  the 
meaning  of  the  law.'' 

The  American  courts,  however,  have  not  followed  the 
early  English  decisions  on  this  subject,  but  have  seen  fit 
to  give  a  different  interpretation  to  statutes  of  a  similar 
nature,  and  the  modern  decisions  of  the  courts  of  Great 
Britain  which  have  been  brought  to  our  attention  indicate 
that  they  also  are  unwilling  to  follow  the  rule  laid  down 
by  the  early  English  decisions.  It  is  certain,  however,  that 
the  rule  of  the  early  English  courts  has  not  been  adopted 
generally  by  the  American  state  and  the  federal  courts. 
The  general  rule  on  the  subject  has  been  clearly  and  suc- 
cinctly stated  as  follows :  * 

"At  common  law  wagers  which  did  not  violate  any  rule  of  public 
decency  or  morality,  or  any  recognized  principle  of  public  policy, 
were  not  prohibited.  Since  the  passing  of  the  above  statute  (8  &  9 
Vict.,  c.  109,  s.  18),  however,  cases  have  arisen  which  present  the 
question  whether  an  executory  contract  for  the  sale  of  goods  is  not 
a  device  for  indulging  in  the  spirit  of  gaming  which  the  statute 
was  intended  to  repress.  It  has  already  been  shown  {ante,  par.  78, 
etc.)  that  a  contract  for  the  sale  of  goods  to  be  delivered  at  a  future 
day  is  valid,  even  though  the  seller  has  not  goods,  nor  any  other 
means  of  getting  them  than  to  go  into  the  market  and  buy  them. 
But  such  a  contract  is  only  valid  where  the  parties  really  intend  and 
agree  that  the  goods  are  to  be  delivered  by  the  seller,  and  the  price 
to  be  paid  by  the  buyer.  /•/,  tinder  guise  of  such  a  contract,  the 
real  intent  be  merely  to  speculate  in  the  rise  and  fall  of  prices,  and 
the  goods  are  not  to  he  delivered,  hut  one  party  is  to  pay  to  the 
other  the  difference  hetween  the  contract  price  and  the  market  price 
of  the  goods  at  the  date  fixed  for  executing  the  contract,  then  the 
whole  transaction  constitutes  nothing  more  than  a  wager,  and  is  null 
and  void  under  the  statute." 

The  Supreme  Court  of  the  United  States,  in  a  number  of 
decisions,  has  adopted  in  terms  the  rule  as  laid  do\vn  by 
Benjamin,  and  has  carried  its  application  one  step  farther. 
It  has  also  held  that  a  broker,  who,  in  the  capacity  of 
agent,  represents  a  trader  on  the  stock  exchange  may  be 
so  connected  with  the  transaction  as  to  render  any  con- 
tract which  he  may  make  with  his  principal  illegal  and  void.' 

'  The  leading  case  on  the  subject,  is  Thacker  v.  Hardy,  4  Q.  B. 
D.  685. 

*  Benjamin,  Sales    (7th  Am.  ed.)    sec.  542. 

'  The  leading  cases  on  this  point  are  Irwin  v.  Williar,  110  U.  S. 
509,  28  L.  ed.  225  and  Embrey  v.  Jemison,  131  U.  S.  336,  33  L.  ed.  172. 


116  I  EXTRATERRITORIAL  CASES. 

"It  is  certainly  true,"  said  the  court  in  the  first  of  these  cases,' 
"that  a  broker  might  negotiate  such  a  contract  without  being  privy 
to  the  illegal  intent  of  the  principal  parties  to  it  which  renders  it 
void,  and  in  such  a  case,  being  innocent  of  any  violation  of  law,  and 
not  suing  to  enforce  an  unlawful  contract,  has  a  meritorious  ground 
for  the  recovery  of  compensation  for  services  and  advances.  But  we 
are  also  of  the  opinion  that  when  the  broker  is  privy  to  the  unlaw- 
ful design  of  the  parties,  and  brings  them  together  for  the  very 
purpose  of  entering  into  an  illegal  agreement,  he  is  particeps  criminis 
and  cannot  recover  for  services  rendered  or  losses  incurred  by  him- 
self on  behalf  of  either  in  forwarding  the  transaction."     *     *     * 

"*  *  *  for,  as  was  propei'ly  said  in  the  charge,  'it  makes  no 
difference  that  a  bet  or  wager  is  made  to  assume  the  form  of  a  con- 
tract. Gambling  is  none  the  less  such  because  it  is  carried  on  in  the 
form  or  guise  of  legitimate  trade.'  It  might  therefore  be  the  case, 
that  a  series  of  transactions,  such  as  that  described  in  the  present 
record,  might  present  a  succession  of  contracts,  perfectly  valid  in 
form,  but  which  on  the  face  of  the  whole,  taken  together,  and  in 
connection  with  all  the  attending  circumstances,  might  disclose  in- 
dubitable evidences  that  they  were  mere  wagers." 

The  general  principle  laid  down  in  the  second  case  "^  was 
that  a  contract  for  the  purchase  of  future  delivery  of 
actual  cotton  being  contemplated  by  the  parties,  but  the 
settlement  in  respect  to  which  was  to  have  been  upon  the 
basis  of  mere  "differences"  between  the  market  price  and 
contract  price  of  said  cotton  futures  according  to  the 
fluctuations  of  the  market,  was  a,  wagering  contract,  and 
illegal  and  void  as  well  under  the  statutes  of  New  York  and 
Virginia  as  generally  in  this  country.  The  Court  also  held 
that  the  original  payee  cannot  maintain  an  action  on  a 
note,  the  consideration  of  which  is  money  advanced  by  him 
upon  or  in  execution  of  a  contract  of  wager,  he  being  a 
party  to  such  contract,  or  having  directly  participated  in 
the  making  of  it  in  the  name,  or  on  behalf  of  one  of  the 
parties. 

The  attitude  of  the  state  courts  generally  on  the  question 
under  consideration  is  illustrated  by  the  utterances  quoted 
below : 

"The  mere  fact  that  there  was  specific  property  about  which  the 
transaction    occurred    would    make    no    difference.     Parties    may    as 

"Irwin  V.  Williar,  110  U.  S.  509,  28  L.  ed.  225,  disapproving 
Thacker  v.  Hardy,  42  Q.  B.  D.  685. 

'  Embrey  v.  Jemison,  131  U.  S.  336,  33  L.  ed.  172. 


TOEG  &  READ  V.  SUFFERT,  SEPT.  3,  1907.       117 

effectually  gamble  with  reference  to  actual  property  as  with  reference 
to  the  prices  of  different  classes  of  property.  The  cases  do  not  turn 
upon  that  point,  but  upon  the  actual  intent  of  the  parties." ' 

"The  rule  is  well  established  that  when  the  parties  to  an  executory 
contract  for  the  sale  of  property  do  not  intend  that  the  property 
shall  be  delivered,  but  that  the  transaction  is  to  be  settled  by  the 
payment  of  the  difference  between  the  contract  price  and  the  market 
price  of  the  article  at  a  time  stated,  the  contract  is  void.     *     *     * 

"It  is  the  duty  of  the  courts,  therefore,  where  the  validity  of  the 
contract  is  challenged,  to  receive  evidence  outside  of  the  words  of 
the  contract  and  examine  the  facts  and  circumstances  which  attended 
the  making  of  it  in  order  to  ascertain  if  possible  whether  it  was 
intended  as  a  bona  fide  transaction  for  the  purchase  and  delivery  of 
property  or  merely  colorable.'"* 

"A  transaction  in  stocks  by  way  of  margin,  settlement  of  differ- 
ences and  payment  of  gain  or  loss,  without  intending  to  deliver 
stocks,  is  a  mere  wager." '" 

"And  to  justify  a  court  in  upholding  such  agreement  it  is  not 
too  much  to  require  a  party  claiming  rights  under  it  to  make  it  satis- 
factorily and  affirmatively  appear  that  the  contract  was  made  with 
an  actual  view  to  delivery  and  receipt  of  grain,  not  as  an  evasion 
of  the  statute  against  gaming,  or  as  a  cover  for  a  gambling  trans- 
action." " 

In  view  of  the  foregoing  principles  of  law  which  have 
been  thoroly  and  universally  established  by  the  decisions  of 
the  courts  of  the  United  States,  and  which  have  been  in- 
corporated generally  into  the  state  statutes,  it  is  manifest 
that  the  fate  of  this  case  must  turn  upon  the  answer  given 
to  the  question :  Was  it  the  intention  of  the  defendant 
Suffert  and  plaintiff  Read  at  the  time  the  order  to  purchase 
the  shares  in  question  was  given  that  said  purchase  should 
be  for  the  purpose  of  investment  and  for  the  actual  delivery 
of  the  shares,  or  was  it  understood  between  the  said  parties 
that  the  contract  was  made  with  a  view  to  a  settlement  on 
"differences"?  The  testimony  on  this  point  is  somewhat 
contradictory,  plaintiff  Read  stating  that  he  had  no  knowl- 
edge of  defendant's  intention  when  the  transaction  was 
made,  defendant,  on  the  other  hand,  holding  that  it  was 


'  First  National  Bank  v.  Carroll,  80  la.  11,  45  N.  W.  304,  8  L.  R. 
A.  276. 

"  Sprague  v.  Warren,  26  Neb.  326,  41  N.  W.  1113,  3  L.  R.  A.  679. 

"  Waugh  v.  Beck,  114  Pa.  St.  42,  6  Atl.  923. 

"  Barnard  v.  Backhaus,  52  Wis.  593,  6  N.  W.  252,  9  N.  W.  595. 


11^  I  EXTRATERRITORIAL  CASES. 

his  intention  to  speculate  on  the  rise  and  fall  of  stocks  and 
that  he  informed  plaintiff  Read  of  this  fact  on  various 
occasions.  The  testimony  (p.  33)  of  Suffert  on  this  point 
is  as  follows: 

"I  told  Mr.  Read,  not  only  on  one  occasion  but  on  several  occasions, 
that  I  was  buying  and  selling  only  on  differences,  that  I  had  never 
taken  the  shares  up  with  anybody  else,  or  intended  to.  I  told  him 
that  to  protect  me,  so  to  speak." 

In  view  of  the  conflicts  on  this  point  it  becomes  necessary 
to  examine  all  the  testimony  produced  at  the  trial  and  to 
consider  all  the  circumstances  attending  the  transaction 
for  the  purpose  of  ascertaining  the  real  intention  of  the 
parties.  The  record  shows  that  plaintiff  Read  met  the 
defendant  at  the  Race  Club  in  1902,  at  which  time  they 
engaged  in  a  conversation  on  the  subject  of  trading  on  the 
stock  exchange.  As  a  result  of  this  conversation,  it  appears 
that  plaintiffs  purchased  for  defendant's  account  a  large 
number  of  shares  during  the  six  months  immediately  fol- 
lowing. According  to  Read's  testimony,  plaintiffs  pur- 
chased for  defendant's  account,  on  January  24,  30  "Pulps," 
on  February  17,  60  "Pulps,"  on  April  15,  75  "Farnhams"; 
on  July  26  he  sold  75  "Farnhams."  Mr.  Read  also  testified 
(p.  4)  that  the  "actual  transaction  upon  which  this  case 
is  based  was  for  the  July  settlement."  The  record  also 
shows  that  plaintiffs  submitted  statements  covering  these 
transactions  to  defendant  Suffert  on  various  occasions, 
which  indicate  that  all  of  said  purchases  were  for  future 
delivery. 

Eliminating,  for  the  time  being,  the  consideration  of  the 
testimony  of  defendant  Suffert  on  the  question  of  intention, 
it  is  hardly  reasonable  to  suppose  from  plaintiff  Read's  own 
testimony  that  he  entertained  the  view  that  this  transaction 
was  a  bo7ia  fide  one  for  the  actual  purchase  and  delivery  of 
shares.  The  testimony  shows  that  he  knew  very  little  about 
Suffert  at  the  time  the  transaction  was  made,  and  what  he 
did  know  was  not  such  as  to  warrant  him  in  making  a  large 
investment  on  his  behalf.  He  testified  (p.  6)  on  this  point 
as  follows: 

"Q.  Did  he  (Suffert)  come  to  you  in  the  first  instance  or  did  you 
go  to  him? 


TOEG  &  READ  V.  SUFFERT,  SEPT.  3,  1907.       119 

A.  My  recollection  is  that  he  first  approached  me  at  the  coffee 
table  at  the  Race  Club.     He  gave  me  an  order  to  buy  twenty  Langkats. 

Q.  At  that  time  did  you  know  Mr.  Suffert  as  an  operator  in  shares? 

A.  I  did  not  know  that.  He  was  a  member  of  the  Race  Club  and  at 
that  time  I  believe  he  had  one  or  two  ponies." 

On  cross-examination,  Mr.  Read  made  the  following  state- 
ment: 

"Q.  When  you  bought  these  shares,  which  you  allege  for  Mr.  Suf- 
fert, had  you   any  knowledge  of  his  financial   position? 

A.  None  whatever,  except  that  he  was  a  member  of  the  Race  Club. 

Q.  That  is  not  a  very  expensive  matter. 

A.  No,  but  race  ponies  is. 

Q.  You  bought  shares  to  an  amount  exceeding  Tls.  30,000  on  ac- 
count of  Mr.  Suffert? 

A.  Yes." 

There  is  nothing  in  the  record  which  goes  to  show  that 
defendant  Suffert  was  a  man  of  any  financial  standing  in 
this  community,  or  that  plaintiffs  had  any  reason  to  believe 
that  he  was.  The  testimony  also  shows  that  these  transac- 
tions took  place  at  a  time  when  gambling  on  the  stock  ex- 
change was  rife  in  Shanghai.  The  testimony  of  Mr.  Read 
on  this  point  is  as  follows : 

"Q.  You  say  this  was  the  top  of  a  big  boom?  You  mean  in  spec- 
ulation? 

A.  You  can  call  it  speculation  if  you  like. 

Q.  Buying  for  a  rise? 

A.  Everybody  had  been  making  money. 

Q.  Over   speculating? 

A.  People  had  been  making  money. 

Q.  Don't  you  mean  by  speculating? 

A.  I  admit  to  a  great  extent." 

It  thus  appears  that  the  testimony  in  this  case  establishes 
the  following  facts : 

1.  That  plaintiffs  made  and  executed  the  above-mentioned  contract, 
involving  the  outlay  of  large  sums  of  money,  without  any  knowledge 
of  the  financial  standing  of  defendant  Suffert  further  than  that  he 
was  a  member  of  the  Shanghai  Race  Club  and  owned  one  or  two 
ponies; 

2.  That  when  the  stocks  in  question  were  purchased  for  defendant, 
no  demand  was  made  upon  him  for  the  purchase  price  of  the  same: 
on  the  other  hand  a  number  of  accounts  were  rendered  by  plaintiffs 
covering  said  transactions,  all  of  which  indicate  that  the  parties  un- 
derstood the  transaction  to  be  with  view  to  settlement  on  differences; 


]^20  I  EXTRATERRITORIAL  CASES. 

3.  That  speculating  in  shares  in  this  community  is  usually  rife,  and 
that  the  transaction  under  consideration  was  made  during  a  period 
when  there  was  a  so  called  boom  in  stocks  in  Shanghai; 

4.  That  defendant  has  testified  clearly  and  specifically  that  he  told 
plaintiff  Read  on  several  occasions  that  the  buying  and  selling  was 
on  differences  and  that  he  never  had  taken  up  shares  with  anybody 
else  and  never  intended  to  do  so  with  him. 

In  view  of  these  facts,  it  is  impossible  to  escape  the  con- 
viction that  the  contract  in  question  v^^as  made  v^ith  view 
to  settlement  on  differences  pure  and  simple  and  that  it 
was  so  understood  by  the  parties  at  the  time  the  contract 
was  made. 

We  hold,  therefore, 

1.  That  the  transaction  in  question  which  gave  rise  to  the 
obligation  upon  which  this  suit  is  based  was  a  gambling 
transaction  which,  under  the  law,  was  illegal  and  void. 

2.  That  said  plaintiffs  herein,  acting  as  brokers  for  said 
defendant  in  said  transaction  were  privy  to  the  unlawful 
designs  of  the  parties  to  the  contract  and  aided  in  bringing 
them  together  for  the  purpose  of  entering  into  said  illegal 
agreement,  thereby  became  particeps  criminis,  and  hence 
cannot  recover  for  services  rendered  or  losses  sustained  by 
them  on  behalf  of  said  defendant  in  said  transaction. 

The  plaintiffs  will  pay  the  costs.^- 


IN  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS. 
Charles  A.  Biddle  v.  United  States. 

[No.  1463;   filed  October  28,  1907.] 

SYLLABUS. 

(By  the  Editor.) 

1.  EXTRATEREITORIAL  JURISDICTION:  THE  OBJECT  of  the  Sino- 
American  treaties  and  the  legislation  for  executing  them  was 
to  secure  for  Americans  in  China  the  benefits  of  their  own  sys- 
tem of  criminal  procedure  and  at  the  same  time  to  subject  them 
to  punishment  for  acts  made  criminal  by  any  law  of  the  United 
States  or  by  the  common  law. 

"  An  appeal  was  dismissed   (167  Fed.  125)   oh  the  ground  that  the 
cause  could  be  brought  up  by  writ  of  error  only. 


BIDDLE  V.  UNITED  STATES,  OCT.   28,   1907.  121 

2.  CRIMES:    Obtaining  Property  Under  False  Pretenses  was  an 

offense  at  common  law. 

3.  Id. :  Id.:  It  is  also  an  offense  under  the  Acts  of  Congress  in  force 

over  Americans  in  China. 

4.  Id. :  Id.:   Information  for  said  offense  held  insufficient  in  not  al- 

leging misrepresentation  as  to  some  past  or  existing  fact. 

5.  Id.  :   Id.  :   Evidence  found  insufficient  to  convict  of  such  offense. 

Edwin  H.  Lamme  and  Francis  Ellis,  for  appellant. 
Robert  T.  Devlin,  U.  S.  District  Attorney,  and  Benjfimin 
L.  McKinley,  Assistant,  contra. 


De  Haven,  District  Judge: 

This  is  an  appeal  by  the  defendant  from  a  judgment  of 
the  United  States  Court  for  China,  by  which  he  was  con- 
victed of  the  crime  of  obtaining  money  under  false  pre- 
tenses and  sentenced  to  imprisonment  for  the  term  of  one 
year  in  the  jail  at  Shanghai. 

It  is  claimed  by  the  appellant,  first,  that  the  court  below 
was  without  jurisdiction  to  try  him  for  such  alleged  crime, 
because  the  act  of  obtaining  money  or  goods  by  false  pre- 
tenses was  not  an  offense  at  common  law,  and  is  not  made 
a  crime  by  the  laws  of  the  United  States ;  and  second,  that 
the  evidence  was  not  sufficient  to  warrant  his  conviction. 

The  United  States  Court  for  China  was  created  by  the 
Act  ^  of  June  30,  1906,  and  by  section  one  of  that  act  was 
given, 

"exclusive  jurisdiction  in  all  cases  and  judicial  proceedings  whereof 
jurisdiction  may  now  be  exercised  by  United  States  consuls  and 
ministers  by  law  and  by  virtue  of  treaties  between  the  United  States 
and  China,  except  in  so  far  as  the  said  jurisdiction  is  qualified  by 
section  two  of  this  Act." 

Section  4,  of  the  same  act,  provides : 

"The  jurisdiction  of  said  United  States  court,  both  original  and 
on  appeal,  in  civil  and  criminal  matters,  and  also  the  jurisdiction  of 
the  consular  courts  in  China,  shall  in  all  cases  be  exercised  in  con- 
formity with  said  treaties  and  the  laws  of  the  United  States  now 
in  force  in  reference  to  the  American  consular  courts  in  China,  and 
all  judgments  and  decisions  of  said  consular  courts,  and  all  decisions, 

'  34  U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  3934,  p.  814. 


122  I   EXTRATERRITORIAL   CASES. 

judjvments,  and  decrees  of  the  United  States  court,  shall  be  enforced 
in  accordance  with  said  treaties  and  laws.  But  in  all  such  cases  when 
such  laws  are  deficient  in  the  provision  necessary  to  give  jurisdiction 
or  to  furnish  suitable  remedies,  the  common  law  and  the  law  as  es- 
tablished by  the  decisions  of  the  courts  of  the  United  States  shall  be 
applied  by  said  court  in  its  decisions  and  shall  govern  the  same  sub- 
ject to  the  terms  of  any  treaties  between  the  United  States  and 
China." 

The  law  in  relation  to  the  jurisdiction  of  consular  courts 
at  the  date  of  the  passage  of  the  act  creating  the  United 
States  Court  for  China,  is  found  in  section  4086  of  the 
Revised  Statutes,  and  is  as  follows : 

"Jurisdiction  in  both  civil  and  criminal  matters  shall,  in  all  cases, 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which  are  hereby,  so  far  as  is  necessary  to  execute  such 
treaties,  respectively,  and  so  far  as  they  are  suitable  to  carry  the 
same  into  effect,  extended  over  all  citizens  of  the  United  States  in 
those  countries,  and  over  all  others  to  the  extent  that  the  terms  of 
the  treaties,  respectively,  justify  or  require.  But  in  all  cases  where 
such  laws  are  not  adapted  to  the  object,  or  are  deficient  in  the  pro- 
visions necessary  to  furnish  suitable  remedies,  the  common  law  and 
the  law  of  equity  and  admiralty  shall  be  extended  in  like  manner  over 
such  citizens  and  others   in   those  countries." 

The  United  States  by  its  treaty  with  China,  acquired 
extraterritorial  jurisdiction  in  civil  controversies  between 
its  citizens  residing  in  China,  and  in  respect  to  all  crimes 
committed  by  its  citizens  residing  there,  and  Congress  in 
the  statutes  above  referred  to  provided  tribunals  to  exercise 
such  jurisdiction,  "in  conformity  with  the  laws  of  the  United 
States,"  and  when  these  laws  "are  not  adapted  to  the  object, 
or  are  deficient  in  the  provisions  necessary  to  furnish  suit- 
able remedies,"  then  in  accordance  with  the  common  law. 

The  object  of  the  treaty  and  the  intention  of  Congress, 
in  creating  the  United  States  Court  for  China,  in  so  far  as 
that  court  is  given  criminal  jurisdiction,  was  to  throw 
around  American  citizens  residing  or  sojourning  in  China, 
and  there  charged  with  crime,  the  beneficent  principles  of 
the  laws  of  the  United  States  relating  to  the  trial  of  persons 
charged  with  crime;  the  rules  of  evidence,  the  presumption 
of  innocence,  the  degree  of  proof  necessary  to  convict,  the 
right  of  the  accused  to  be  confronted  with  witnesses  against 


BIDDLE  V.  UNITED  STATES,  OCT.   28,   1907.  123 

him,  exemption  from  being  compelled  to  criminate  himself, 
etc.  But  while  securing  to  them  these  privileges,  the 
statute  at  the  same  time  made  them  subject  to  punishment 
for  acts  made  criminal  by  any  law  of  the  United  States, 
or  for  acts  recognized  as  crimes  under  the  common  law. 

II. 

This  brings  us  to  the  consideration  of  the  question, 
whether  obtaining  money  or  goods  by  false  pretenses  is  an 
offense  which  may  be  thus  punished,  if  committed  by  an 
American  citizen  in  China.  This  particular  kind  of  cheat- 
ing was  not  a  crime  under  the  ancient  common  law.  It  was 
first  so  declared  -  in  the  year  1757,  by  the  statute  of  30 
Geo.  II,  chap.  24. 

"Under  this  statute  for  the  first  time,  the  crime  ceased  to  depend 
on  the  particular  kind  of  pretense  used,  the  statute  being  couched  in 
terms  bi'oad  enough  to  include  the  use  of  any  false  pretense  whatever, 
altho,  as  will  appear  later,  the  judges,  in  construing  the  statutes, 
excepted  certain  classes  of  pretenses  from  it.  It  was  this  statute 
that  created  the  crime  now  commonly  known  as  obtaining  goods  under 
false  pretenses.  Several  statutes  have  been  enacted  in  England  since 
the  statute  of  30  Geo.  II  to  supply  defects  found  therein,  but  its 
general  provisions,  in  so  far  as  they  defined  the  crime,  remain  un- 
changed." ^ 

But,  if  the  Statute  of  30  Geo.  II,  and  those  amendatory 
of  it,  which  were  in  force  at  the  date  of  the  separation  of 
the  American  colonies  from  the  mother  country,  are  to  be 
considered  as  a  part  of  the  common  law  to  which  Congress 
referred  in  the  enactment  above  quoted,  the  jurisdiction  of 
the  court  over  the  offense  of  obtaining  money  under  false 
pretenses  would  be  undoubted;  and  we  are  of  opinion  that 
in  making  the  common  law  applicable  to  offenses  committed 
by  American  citizens  in  China,  and  the  other  countries  with 
which  we  have  similar  treaties,  Congress  had  reference  to 
the  common  law  in  force  in  the  several  American  colonies 
at  the  date  of  the  separation  from  the  mother  country,  and 
this  included  not  only  the  ancient  common  law,  the  lex  non 

^  Bishop,  Criminal  Law  (3rd  ed.)  vol.  2,  sec.  392. 
*  Cyc.  XIX,  387. 


124  I   EXTRATERRITORIAL   CASES. 

scripta,  but  also  statutes  which  had  theretofore  been  passed 
amendatory  of  or  in  aid  of  the  common  law. 

"The  rule  is  familiar  to  the  legal  profession,  that  colonists  to  an 
uninhabited  country  carry  with  them  the  laws  of  their  mother  country, 
as  far  as  applicable  to  their  new  situation  and  circumstances;  and 
that,  in  their  new  home,  the  laws  thus  taken  with  them,  whether  in 
the  mother  country  they  were  written  or  unwritten,  are  regarded  as 
unwritten,  or  common  law."  * 

The  a,uthor  of  a  great  work,^  says : 

"The  colonies  also  had  legislatures  of  their  own,  by  which  laws 
had  been  passed  which  were  in  force  at  the  time  of  the  separation, 
and  which  remained  unaffected  thereby.  When,  therefore,  they 
emerged  from  the  colonial  condition  into  that  of  independence,  the  laws 
which  governed  them  consisted,  first,  of  the  common  law  of  England, 
so  far  as  they  had  tacitly  adopted  it  as  suited  to  their  condition; 
second,  of  the  statutes  of  England,  or  of  Great  Britain,  amendatory 
of  the  common  law,  which  they  had  in  like  manner  adopted;  and 
third,  of  the  colonial  statutes.  The  first  and  second  constituted  the 
American  common  law,  and  by  this  in  great  part  are  rights  adjudged 
and  wrongs  redressed  in  the  American   States  to  this  day." 

III. 

In  holding  that  the  court  below  had  jurisdiction  of  the 
information  upon  which  the  defendant  was  tried,  it  is  not 
necessary  for  us  to  rest  our  decision  entirely  upon  the  pro- 
position that  obtaining  money  or  goods  under  false  pre- 
tenses is  an  offense  at  common  law,  within  the  meaning 
of  the  statute  conferring  jurisdiction  upon  the  United 
States  Court  for  China,  as  we  are  clearly  of  opinion  that 
such  an  act  is  a  crime  under  the  laws  of  the  United  States, 

It  is  true,  there  is  no  general  statute  applicable  to  every 
state  in  the  Union,  making  this  an  offense  against  the  United 
States,  nor  could  there  be  in  view  of  the  fact  that  under 
our  system  of  government,  the  right  to  punish  for  such  acts 
committed  within  the  political  jurisdiction  of  the  state,  is 
reserved  to  the  several  states ;  but  in  legislating  for  territory 
over  which  the  United  States  exercises  exclusive  legislative 
jurisdiction,  Congress  has  made  the  act  of  obtaining  money 

*  Bishop,  Criminal   Law    (3rd  ed.),   sec.   155. 

"  Cooley,   Constitutional   Limitations    (2nd  ed.),   25. 


BIDDLE  V.  UNITED  STATES,  OCT.   28,   1907.  125 

under  false  pretenses,  a  crime.  Thus  in  section  54  of  Title 
I.,  Part  I,  of  the  Act  passed  March  3,  1899,  entitled,  "An  Act 
to  define  and  punish  crimes  in  the  District  of  Alaska  and 
to  provide  a  code  of  criminal  procedure  for  said  District," 
Congress  has  enacted,  that  obtaining  money  or  property 
from  another  by  any  false  pretense,  shall  constitute  a  crime, 
subjecting  the  offender  to  punishment  by  imprisonment  in 
the  penitentiary  not  less  than  one  nor  more  than  five  years. 
So  also,  under  section  842  of  the  Act  of  March  3,  1901, 
entitled  "An  Act  to  establish  a  code  of  law  for  the  District 
of  Columbia,"  obtaining  from  any  person  anything  of  value 
by  means  of  false  pretenses,  is  made  a  crime,  and  where 
the  value  of  the  property  so  secured  is  thirty-five  dollars 
or  upwards,  subjects  him  to  imprisonment  not  less  than  one 
year  nor  more  than  three  years;  or,  if  less  than  that  sum, 
to  a  fine  not  more  than  two  hundred  dollars,  or  imprison- 
ment for  not  more  than  six  months,  or  both.'' 

Congress  has  thus  clearly  declared,  that  in  the  territory 
of  Alaska  and  in  the  District  of  Columbia  over  which  the 
government  of  the  United  States  exercises  exclusive  legis- 
lative jurisdiction,  obtaining  money  or  goods  under  false 
pretenses,  constitutes  an  offense. 

In  addition  to  these  statutes,  section  2  of  the  Act  of  July 
7, 1898  '  which  is  in  substance  a  reenactment  of  section  5391, 
Revised  Statutes,  provides: 

"That  when  any  offense  is  committed  in  any  place,  jurisdiction 
over  which  has  been  retained  by  the  United  States  or  ceded  to  it  by 
a  State,  or  which  has  been  purchased  with  the  consent  of  a  State  for 
the  erection  of  a  fort,  magazine,  arsenal,  dockyard  or  other  needful 
building  or  structure,  the  punishment  for  which  offense  is  not  pro- 
vided for  by  any  law  of  the  United  States,  the  person  committing 
such  offense  shall,  upon  conviction  in  a  circuit  or  district  court  of  the 
United  States  for  the  district  in  which  the  offense  was  committed,  be 
liable  to  and  receive  the  same  punishment  as  the  laws  of  the  State 
in  which  such  place  is  situated  now  provide  for  the  like  offense  when 
committed  within  the  jurisdiction  of  such  State,  and  the  said  courts 
are    hereby    vested    with    jurisdiction    for    such    purposes;    and    no 

"  31  U.  S.  Stats,  at  Large,  1326. 
'30  U.  S.  Stats,  at  Large,  717. 


126  I  EXTRATERRITORIAL  CASES. 

subsequent  repeal  of  any  such  State  law  shall  affect  any  such 
prosecution." 

Under  this  statute,  any  act  committed  in  any  place  under 
the  jurisdiction  of  the  United  States,  if  made  an  offense 
by  the  laws  of  the  State,  in  which  such  place  is  situate, 
when  committed  elsewhere  in  the  State,  is  an  offense 
against  the  United  States,  and  punishable  as  in  the  State 
law  provided.* 

At  the  date  of  the  passage  of  the  Act  of  July  7,  1898, 
just  quoted,  the  act  of  obtaining  money  or  goods  by  false 
pretenses  was  made  a  crime  by  the  laws  of  most  of  the 
states  of  the  Union,  and  is,  therefore,  under  this  statute, 
also  made  a  crime  against  the  United  States,  in  all  places 
over  which  the  United  States  exercises  exclusive  legislative 
jurisdiction,  within  the  several  states,  having  laws  provid- 
ing for  the  punishment  of  such  an  act  as  a  crime. 

In  view  of  the  legislation  of  Congress  to  which  we  have 
referred  (the  Acts  relating  to  Alaska,  and  the  District  of 
Columbia,  and  the  statute  of  July  7,  1898),  our  conclusion 
is,  that  obtaining  money  or  goods  under  false  pretenses 
is  an  offense  against  the  laws  of  the  United  States,  within 
the  meaning  of  the  statute  conferring  jurisdiction  upon 
the  United  States  Court  for  China,  and  that  an  American 
citizen  guilty  of  the  commission  of  such  an  act  in  China 
is  subject  to  trial  and  punishment  therefore  by  that  court. 

IV. 

But,  we  are  of  opinion,  that  the  information  upon  which 
defendant  was  convicted,  does  not  state  facts  sufficient  to 
constitute  the  offense  of  obtaining  money  under  false  pre- 
tenses. The  information  so  far  as  is  necessary  to  be  here 
set  out,  charges,  that  the  defendant, 

"on  or  about  the  31st  day  of  October,  1906,  in  Shanghai,  China,  un- 
lawfully and  knowingly  did  falsely  pretend  to  Woo  Ah  Sung,  Zung 
Yu  Young,  Ng  Sih  Yiek  and  Sz  Yung,  that  the  municipal  authorities 
of  the  International  Settlement  of  Shanghai,  China,  would  allow  and 
permit  in  the  building  known  as  Nos.  4  and  5  Mohawk  Road,  Shanghai, 

■  Sharon  v.  Hill,  24  Fed.  731;  U.  S.  v.  Wright,  Fed  Cas.  No.  16774; 
U.  S.  V.  Pridgeon,  153  U.  S.  48-53,  38  L.  ed.  631. 


BIDDLE  V.  UNITED  STATES,  OCT.   28,   1907.  127 

China,  *  *  *  Chinese  gambling  games  to  be  played  during  the 
Autumn  Race  Meeting  of  1906,  in  Shanghai,  China,  which  pretenses 
were  false  as  the  said  C.  A.  Biddle,  with  intent  to  defraud,  unlawfully 
did  obtain  from  the  said  Woo  Ah  Sung,  Zung  Yu  Dong,  Ng  Sih  Yiek 
and  Sz  Yung  the  sum  of  Tls.  3,000.00  Shanghai  Sycee  as  rent  for  the 
said  premises  to  be  used  for  the  said  gambling  games." 

It  will  be  noticed  that  the  alleged  false  pretenses  relate 
wholly  to  some  future  action  of  the  municipal  authorities  of 
the  International  Settlement  of  Shanghai,  in  permitting 
Chinese  gambling  to  be  played  during  the  Autumn  Race 
Meeting  of  1906,  in  Shanghai.  There  is  no  averment  that 
defendant  made  any  false  representation  as  to  any  existing 
fact,  or  past  fact,  and  without  such  an  averment  the  charge 
of  obtaining  money  under  false  pretenses  cannot  be  sus- 
tained. 

"Both  in  the  nature  of  things,  and  in  actual  adjudication,  says  Mr. 
Bishop,*  the  doctrine  is,  that  no  representation  of  a  future  event, 
whether  in  the  form  of  a  promise  or  not,  can  be  a  pretense,  within 
the  statute;  for  the  pretense  must  relate  either  to  the  past  or  the 
present." 

The  statement  is  well  sustained  by  decided  cases. '^  Our 
attention  has  not  been  called  to  any  case  which  holds  to 
the  contrary.  [That]  "  which  is  cited  by  the  learned  attor- 
ney for  the  United  States,  is  in  harmony  with  the  rule  as  we 
have  stated  it.  In  that  case  the  defendant  obtained  money 
upon  a  draft  drawn  by  him,  he  falsely  stating  at  the  time 
that  he  had  credit  with  the  firm  upon  which  it  was  drawn, 
for  the  amount  of  the  draft,  and  that  the  draft  would  be 
honored.  In  that  case  it  will  be  perceived,  there  was  the 
false  representation  of  an  existing  fact,  and  the  court  in  its 
decision  upholding  the  conviction  in  that  case,  said: 

"It  is  true  that,  to  come  within  the  statute,  a  representation  must 
be  of  some  fact,  past  or  present;  but  the  statement  of  the  defendant 
that  he  had  credit  with  the  firm  named  for  the  amount  of  the  draft, 
and  that  the  firm  would  honor  the  draft,  when  he  knew  that  he  had 
no  credit  with  the  firm,  and  that  the  draft  would  not  be  honored  or 
paid,  was   sufficient." 

"  Bishop,  Criminal  Law   (3rd  ed.)    II,  sec.  401. 
"People  V.  Miller,  169  N.  Y.  339,  62  N.  E.  418;  Cook  v.  State,  71 
Neb.  243;   98  N.  W.  810. 

"  People  V.  Wasservogel,  77  Cal.   173. 


128  I   EXTRATERRITORIAL   CASES. 

V. 

Passing  from  the  information  to  a  consideration  of  the 
evidence:  It  was  wholly  insufficient  to  justify  the  conviction 
of  defendant.  It  appears  that  on  May  29,  1906,  the  defend- 
ant in  his  own  name,  but  in  fact  acting  for  the  Hotel 
Metropole  Company,  Limited,  entered  into  a  contract  with 
the  firm  composed  of  the  Chinese  named  in  the  information, 
whereby  the  defendant, 

"let  during  the  four  days  of  the  autumn  race  meeting  of  1906,  the 
whole  of  the  second  floor  and  veranda  of  the  building  Nos.  4  and  5 
Mohawk  Road,  for  the  purpose  of  running  Chinese  tables  for  the  sum 
of  taels  six  thousand — Tls.  6,000 — fifteen  hundred  taels  of  which  to 
be  paid  on  the  signing  of  the  contract  by  the  said  Yik  Che  as  bargain 
money,  the  balance  to  be  paid  on  or  before  the  first  day  of  November, 
1906.  This  contract  to  be  null  and  void  should  the  municipal  author- 
ities prohibit  the  running  of  the  said  building  as  a  Chinese  grand 
stand  during  said  race  meeting  and  the  above  mentioned  fifteen  hun- 
dred taels  bargain  money  be  returned  to  the  said  Yik  Che." 

It  is  very  clearly  shown  by  the  evidence  that,  when  the 
payments  were  made  under  this  contract,  the  parties  knew 
that  gambling  was  not  then  permitted  in  Shanghai,  and 
would  not  be  during  the  approaching  Autumn  race  meeting 
of  1906,  unless  the  municipal  authorities  should  in  some 
manner  remove  the  prohibition.  There  was  also  some  evi- 
dence tending  to  show  that  the  Council  had  refused,  before 
the  making  of  the  above  lease,  to  give  its  consent  to  the 
suspension  of  the  ordinance  against  gambling  in  Shanghai, 
and  that  this  fact  was  known  to  the  defendant  and  not 
communicated  by  him  to  the  lessees ;  and  that  he  and  others 
were  endeavoring  to  get  the  Council  to  recede  from  its 
position  against  gambling,  during  the  time  the  several 
payments  were  made  under  this  lease;  but  there  was  no 
evidence  that  defendant  ever  made  any  express  or  implied 
representation  that  the  ordinance  against  gambling  had 
been  repealed  or  suspended ;  there  was  no  false  representa- 
tion of  any  existing  fact. 

The  judgment  ^^  is  reversed,  with  directions  to  discharge 
the  defendant. 


See  ante,  87.     Ed. 


PRICE  V.  UNITED  STATES,  NOV.  5,   1907.  129 

IN  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS. 
S.  R.  Price  v.  United  States. 

[No.  1429;  filed  November  5,  1907.] 
[156  Fed.   950,   15   L.   R.   A.    (N.   S.)    1272.] 

SYLLABUS. 

(By  the  Editor.) 

1.  CRIMINAL    PROCEDURE:     DOUBLE    JEOPARDY.     A    preliminary    ex- 

amination will  not  bar  a  subsequent  prosecution  and  a  plea  in 
bar  which  alleges  no  more  is  properly  overruled. 

2.  ASSAITIT.     Dangerous   weapon   defined. 

3.  Id.  Merely  pointing  an  unloaded  pistol  at  another  is  a  simple  as- 

sault but  not  one  with  a  "dangerous  weapon." 

Be7^t  Schlesmger,  Esq.,  for  appellant. 
Robert  T.  Devlin,  Esq.,  U.  S.  Dist.  Atty.,  for  the  Govern- 
ment. 

De  Haven,  D.  J. : 

The  defendant  was  charged  by  information,  filed  in  the 
United  States  court  for  China,  with  the  crime  of  assault 
with  a  dangerous  weapon,  was  tried,  convicted,  and  sen- 
tenced to  imprisonment  for  the  term  of  six  months  in  the 
jail  *  *  *  at  Shanghai.  The  case  is  before  us  on  an 
appeal  by  the  defendant  from  this  judgment. 

The  court  did  not  err  in  overruling  the  defendant's  "plea 
in  bar,"  in  which  he  alleged  facts  in  support  of  a  plea  of 
former  acquittal  of  the  same  offense  by  the  United  States 
consular  court  at  Shanghai.  In  overruling  this  plea,  the 
judge  of  the  court  below  said: 

"from  the  allegation  of  the  plea  it  is  evident  that  the  accused  was  not 
placed  on  trial  on  a  valid  information,  since  it  appears  that  the  in- 
formation contained  three  distinct  charges,  in  no  one  of  which  was 
defendant  charged  with  assault.  The  consul  general  has  no  jurisdic- 
tion of  the  offense  charged  in  the  information  on  which  the  accused 
is  now  on  trial.  If  he  had  any  jurisdiction  at  all,  it  was  to  hold  a 
preliminary  examination  with  view  to  holding  the  accused  for  trial 
by  a  higher  court.  It  appears  from  the  allegations  of  the  complaint 
(plea  in  bar?)  that  the  consul  general  exercised  only  this  jurisdic- 
tion. The  proceedings  before  him,  therefore,  cannot  be  pleaded  in 
the  bar  to  this  action." 

14008  O.  W. 9 


130  I  EXTRATERRITORIAL  CASES. 

We  cannot  say  from  the  record  before  us  that  the  court 
erred  in  its  construction  of  defendant's  plea,  and  the  ex- 
hibits attached  thereto  showing  the  proceedings  before  the 
consul  general  at  Shanghai.  The  allegation  that,  after  hear- 
ing the  testimony  in  the  proceeding  relied  on  as  a  bar,  the 
consular  court  "dismissed  all  the  charges  against  the  defend- 
ant and  discharged  defendant  therefrom,  and  at  the  same 
time  served  upon  the  defendant  new  charges,"  upon  which 
he  was  held  to  answer  before  the  United  States  court  for 
China,  is  not  an  averment  that  the  defendant  was  in  the 
proceeding  tried  upon  the  present  charge,  or  of  any  offense 
included  therein,  and  adjudged  not  guilty  by  the  consular 
court,  and  is  entirely  consistent  with  the  conclusion  that 
that  court  did  not  in  the  proceeding  before  it  determine  the 
guilt  or  innocence  of  the  defendant  but,  after  hearing  evi- 
dence, required  a  new  complaint  to  be  filed,  charging  him 
with  an  assault  with  a  deadly  weapon,  and  held  him  to 
answer  for  that  offense  before  the  United  States  Court  for 
China. 

The  court  found,  and  there  is  evidence  to  justify  the 
finding,  that  the  defendant,  at  the  time  and  place  stated 
in  the  information,  while  engaged  in  an  angry  altercation 
with  the  complaining  witness,  without  justification,  and 
within  shooting  distance,  drew  a  revolver  and  pointed  it  to- 
ward the  witness  in  a  threatening  manner,  putting  him 
in  such  fear  that  he  got  under  a  table  for  safety.  The 
court  also  found,  and,  indeed,  the  fact  is  undisputed,  that 
the  pistol  was  unloaded,  but  this  was  not  known  to  the 
complaining  witness.  We  think,  upon  the  facts  stated,  the 
judgment  of  the  court  convicting  the  defendant  of  the 
offense  of  an  assault  with  a  dangerous  weapon  cannot  be 
sustained.  In  order  to  constitute  that  offense,  a  dangerous 
weapon  must  be  used  in  making  the  ascault.  The  use  of  a 
dangerous  weapon  is  what  distinguishes  the  crime  of  an 
assault  with  a  dangerous  weapon  from  a  simple  assault. 
A  dangerous  weapon  "is  one  likely  to  produce  death  or 
great  bodily  injury.'"  Or  perhaps  it  is  more  accurately 
described  as  a  weapon  which  in  the  manner  in  which  it  is 


'  United  States  v.  Williams,  2  Fed.  64. 


PRICE  V.  UNITED  STATES,  NOV.   5,  1907.  131 

used  or  attempted  to  be  used  may  endanger  life  or  inflict 
great  bodily  harm.  And  it  is  perfectly  clear  that  an  un- 
loaded pistol,  when  used  in  the  manner  shown  by  the  evi- 
dence in  this  case,  is  not,  in  fact,  a  dangerous  weapon. 
If  the  defendant  had  struck  or  attempted  to  strike  with  it, 
the  question  whether  it  was  or  was  not  a  dangerous  weapon 
in  the  manner  used,  or  attempted  to  be  used,  would  be 
one  of  fact ;  but  the  courts  quite  uniformly  hold  as  a  matter 
of  law  that  an  unloaded  pistol,  when  there  is  no  attempt  to 
use  it  otherwise  than  by  pointing  it  in  a  threatening  manner 
at  another,  is  not  a  dangerous  weapon. 

But,  while  the  evidence  does  not  show  that  the  defendant 
committed  the  crime  of  an  assault  with  a  dangerous  weapon, 
it  is  yet  sufficient  to  prove  him  guilty  of  the  minor  offense 
of  assault.  It  is  true,  as  contended  by  counsel  for  appellant, 
that  it  has  been  adjudged  in  many  cases  that  pointing  an 
unloaded  pistol  at  another,  accompanied  by  a  threat  to 
shoot,  does  not  constitute  an  assault.-  *  *  *  The  cases 
from  Indiana  and  California  are  based  upon  a  statute  in 
force  in  each  of  these  states,  defining  an  assault  as  "an 
unlawful  attempt  coupled  with  a  present  ability  to  commit 
a  violent  injury  upon  the  person  of  another."  [The  Alabama 
case]  does  not  rest  upon  any  statute  but  lays  down  the 
broad  rule 

"that  there  can  be  no  criminal  assault  without  a  present  intention, 
as  well  as  present  ability,  of  using  some  violence  against  the  person 
of  another." 

We  do  not  concur  in  this  statement  of  the  law,  and  in  our 
opinion  the  true  rule  is  stated  by  Mr.  Bishop  3  *  *  * 
in  the  following  language : 

"There  is  no  need  for  the  party  assailed  to  be  put  in  actual  peril, 
if  only  a  well-founded  apprehension  is  created;  for  his  suffering  is 
the  same  in  the  one  case  as  in  the  other  and  the  breach  of  the  public 
peace  is  the  same.  Therefore,  if  within  shooting  distance,  one  menac- 
ingly points  at  another  with  a  gun,  apparently  loaded,  not  loaded  in 
fact,  he  commits  an  assault  the   same  as  if  it  were   loaded.     There 


'  Klein  v.  State,  9  Ind.  App.  365,  53  Am.  St.  Rep.  854,  36  N.  E. 
763;  Chapman  v.  State,  78  Ala.  463,  56  Am.  Rep.  42,  and  People  v. 
Sylva,  143  Cal.  62,  76  Pac.  814. 

'Crim.  Law   (3rd  ed.)    II,  par.  53. 


132  I  EXTRATERRITORIAL  CASES. 

must  in  such  a  case  be  some  power  actual  or  apparent,  of  doing 
bodily  harm;  but  apparent  power  is  sufficient." 

This  view  is  sustained  by  many  cases,  only  two  of  which 
will  be  cited.*  In  [the  first]  the  defendant  had  been  con- 
victed of  an  assault.     The  trial  court  instructed  the  jury : 

"That  if  the  defendant,  within  shooting  distance,  menacingly  pointed 
at  Harrington  a  gun,  which  Harrington  had  reasonable  cause  to  be- 
lieve was  loaded,  and  Harrington  was  actually  put  in  fear  of  immediate 
bodily  injury  therefrom,  and  the  circumstances  of  the  case  were  such 
as  ordinarily  to  induce  such  fear  in  the  mind  of  a  reasonable  man, 
that  then  an  assault  was  committed,  whether  the  gun  was  in  fact 
loaded  or  not." 

In  sustaining  this  instruction,  the  supreme  court  of  Massa- 
chusetts said: 

"It  is  not  the  secret  intent  of  the  assaulting  party,  nor  the  undis- 
closed fact  of  his  ability  or  inability  to  commit  a  battery,  that  is 
material;  but  what  his  conduct  and  the  attending  circumstances  denote 
at  the  time  to  the  party  assaulted.  If  to  him  they  indicate  an  attack, 
he  is  justified  in  resorting  to  defensive  action.  The  same  rule  applies 
to  the  proof  necessary  to  sustain  a  criminal  complaint  for  an  assault. 
It  is  the  outward  demonstration  that  constitutes  the  mischief  which 
is  punished  as  a  breach  of  the  peace." 

In  [the  second  case]  the  action  was  trespass  for  an 
assault.     It  appears  from  the  statement  of  facts  that 

"the  evidence  tended  to  show  that  the  defendant  snapped  the  gun 
twice  at  the  plaintiff,  and  that  the  plaintiff  did  not  know  whether 
the  gun  was  loaded  or  not,  and  that,  in  fact,  the  gun  was  not  loaded." 

The  court  ruled  that  the  pointing  of  a  gun,  in  an  angry 
and  threatening  manner,  at  a  person  3  or  4  rods  distant, 
who  was  ignorant  whether  the  gun  was  loaded  or  not,  was 
an  assault,  tho  it  should  appear  that  the  gun  was  not 
loaded.  In  upholding  this  instruction  the  supreme  court 
of  New  Hampshire  thus  forcibly  states  the  rule  which  justi- 
fies it: 

"We  have  a  right  to  live  in  society  without  being  put  in  fear  of 
personal  haiTn.  But  it  must  be  a  reasonable  fear  of  which  we  com- 
plain.    And  it  surely  is  not  unreasonable  for  a  person  to  entertain 

*Com.  v.  White,  110  Mass.  407;  Beach  v.  Hancock,  27  N.  H.  223, 
59  Am.  Dec.  373. 


GINSBURG  ET  AL.  V.  ZIMMERMAN,  DEC.   11,   1908.        133 

a  fear  of  personal  injury  when  a  pistol  is  pointed  at  him  in  a  threat- 
ening manner,  when,  for  aught  he  knows,  it  may  be  loaded,  and  may 
occasion  his  immediate  death.  The  business  of  the  world  could  not 
be  carried  on  with  comfort  if  such  things  could  be  done  with  im- 
punity." 

Our  conclusion  is  that,  when  the  court  gave  credit  to 
the  testimony  of  the  witnesses  for  the  prosecution,  as  it 
did,  and  also  found  from  the  evidence  offered  by  defendant 
that  the  pistol  was  unloaded,  it  should  have  found  the  de- 
fendant guilty  of  a  simple  assault. 

The  judgment  is  reversed,  and  the  case  remanded  for  a 
new  trial. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Morris  Ginsburg  and  Marcus  Mess,  co-partners,  doing 
business  under  the  name  and  style  of  GiNSBURG  & 
Company,  plaintiffs,  v.  S.  Zimmerman,  doing  business 
under  the  name  and  style  of  S.  Zimmerman  &  Company, 
defendant. 

[Civil  Action   No.   55;    filed   December   11,   1908.] 

SYLLABUS. 
(By  the  Editor.) 

CONTRACTS:  Public  Policy.  A  charter  party  is  not  avoided  by  false 
registration  of  the  vessel  nor  by  using  her  to  transport  coolies 
from  one  foreign  port  to  another. 

Messrs.  Ellis  &  Hays  and  W.  S.  Fleming,  Esq.,  for 
plaintiff. 

Messrs.  Jemigan  &  Fessenden,  for  defendant. 

WILFLEY,  J.; 

On  March  23,  1907,  defendant  Zimmerman  executed  a 
certain  charter  party  with  plaintiffs  Ginsburg  and  Mess, 
owners  of  the  steamship  Maori  King,  for  its  use  and  hire 
for  three  months,  beginning  on  March  24,  1907,  with  the 
option  of  renewal  for  a  like  additional  period.  The  rate  to 
be  paid  per  month  was  $8,750  Mexican  currency.  If  the 
vessel  was  not  delivered  at  the  expiration  of  the  above- 


134  I  EXTRATERRITORIAL  CASES. 

mentioned  period,  the  defendant  was  to  pay  for  the  use  of 
the  same  for  extra  time  she  was  in  use  at  the  above- 
mentioned  rate.  The  steamship  was  to  be  redelivered  in 
good  condition  and  any  time  occupied  in  making  repairs 
should  count  the  same  as  if  the  vessel  were  in  use  under 
the  charter  party. 

Pursuant  to  agreement,  the  defendant  took  delivery  of 
said  steamship  on  March  24,  1907  and  kept  control  of  her 
continuously  until  November  4,  1907,  using  her  to  transport 
Chinese  coolies  from  Vladivostok  to  Guaymas,  Mexico. 
Plaintiffs  paid  for  her  use  from  March  24  to  August  8, 
1907,  but  since  that  time  have  made  no  payments.  The 
vessel  was  redelivered  to  plaintiffs  in  a  damaged  condition. 
The  testimony  showed  that  it  would  require  twelve  days  to 
make  the  necessary  repairs.  The  amount  due  for  the  use  of 
the  ship  from  August  8  to  November  4,  under  the  charter 
party,  at  the  rate  of  $8,750  Mexican  per  month  is  $25,083.33 
Mexican.  Estimates  for  her  repair  amount  to  $8,133.33 
Mexican  and  her  use  for  twelve  days  at  $8,750  per  month 
would  be  worth  $3,500. 

The  defendant  denies  liability  on  two  grounds: 

1.  Because  the  vessel  was  falsely  registered.  It  appears 
that,  while  owned  by  Russian  subjects,  she  had  been  regis- 
tered in  Shanghai  in  the  name  of  a  British  subject,  and 
that  after  the  expiration  of  the  charter  party  and  the  re- 
delivery of  the  vessel  she  was  declared  forfeited  in  a  suit 
in  H.  B.  M.  Supreme  Court  for  China  and  Korea  on  the 
ground  that  said  false  registration  was  in  violation  of  the 
laws  of  Great  Britain.  It  is  defendant's  contention  that  he 
should  be  absolved  from  liability  because  the  title  of  the 
owners  was  jeopardized  by  said  false  registration. 

The  evidence  shows  that  the  registration  did  not  incon- 
venience, nor  in  any  wise  affect,  defendant's  use  of  the 
ship  under  his  contract.  His  position  is  very  much  that  of 
one  who  has  leased  a  house,  the  title  to  which  had  been 
fraudulently  acquired,  without  affecting  his  use  and  occu- 
pation. Suppose,  by  way  of  illustration,  a  trustee  should 
purchase  a  house  at  his  own  sale,  and  before  the  purchase 
could  be  set  aside  he  should  release  the  property  to  one  who 


GINSBURG  ET  AL.  V.  ZIMMERMAN,  DEC.   11,   1908.        135 

should  use  and  occupy  it  under  his  lease  without  incon- 
venience or  embarrassment.  The  fact  that  the  title  was 
tainted  with  fraud  would  be  no  defense  to  a  suit  by  the 
trustee  to  recover  rent. 

2.  Defendant  further  seeks  to  avoid  liability  on  the  ground 
that  the  steamship  having  been  used  in  the  so-called  "coolie 
trade,"  the  enforcement  of  the  terms  of  the  contract  would 
be  in  violation  of  the  public  policy  of  the  United  States. 

It  is  provided  '  that  if  any  vessel  belonging  in  whole  or 
in  part  to  a  citizen  of  the  United  States,  or  registered, 
enrolled  or  licensed  therein,  be  employed  in  the  coolie  trade, 
it  shall  be  liable  to  seizure  and  condemnation.  These  stat- 
utes also  provide  that  any  person  who  builds  or  fits  out, 
equips,  or  loads,  or  otherwise  prepares,  or  who  sends 
to  sea  or  navigates,  as  owner,  master,  factor,  agent  or  other- 
wise, any  vessel  belonging  in  whole  or  in  part  to  a  citizen 
of  the  United  States,  or  registered  or  enrolled  or  licensed 
within  the  same,  knowing  that  such  vessel  shall  be  em- 
ployed in  the  coolie  trade,  shall  be  liable  to  criminal  pros- 
ecution. None  of  these  sections,  however,  contains  a  provi- 
sion against  the  shipment  of  coolies  from  one  foreign  port 
to  another  in  a  foreign  vessel.  The  mere  statement  of  the 
proposition,  that  a  contract  between  a  Russian  and  an  Amer- 
ican to  charter  a  Russian  vessel  to  ship  coolies  from  Vla- 
divostok to  Guaymas  violates  the  public  policy  of  the  United 
States  is  sufficient  to  demonstrate  its  absurdity.  The  Court 
is  not  familiar  with  any  principle  of  public  policy  that  would 
be  so  violated,  nor  with  any  rule  of  statutory  construction 
which  would  enable  such  an  interpretation  to  be  placed- 
upon  the  above-mentioned  statutes.  If  Congress  had  in- 
tended to  prohibit  citizens  of  the  United  States  from  ship- 
ping coolies  in  a  foreign  vessel  to  and  from  foreign  ports, 
it  would  likely  have  inserted  a  provision  to  that  effect. 

It  is  not  contended,  however,  that  this  contract  comes 
within  the  language  of  the  law.  The  contention  is  indeed  a 
peculiar  one.  Defendant  endeavors  to  bring  the  case  in  con- 
troversy within  the  purview  of  a  statute  which,  if  it  could 
be  pleaded  at  all,  would  render  him  liable  to  criminal  prosecu- 


"  U.  S.  Rev.  Stats.  Sees.  2159,  2160  and  2161. 


136  I  EXTRATERRITORIAL  CASES. 

tion.  In  other  words,  if  the  spirit  of  the  law,  and  not  the 
letter,  should  be  applied,  defendant's  conduct  would  be 
criminal.  It  is  the  opinion  of  the  Court  that  this  conten- 
tion is  not  entitled  to  serious  consideration. 

Judgment  is  therefore  rendered  in  favor  of  plaintiffs  in 
the  sum  of  $38,980.85  Mexican  currency,  and  for  costs. 


IN  THE  SUPREME  JUDICIAL  COURT  OF  MAINE. 
Augusta  C.  Mather  et  al.  v.  Edward  R.  Cunningham. 

[Filed  April   15,   1909;    105   Me.   392,  74   Atl.  809.] 

SYLLABUS. 
(By    the   Editor.) 

1.  DOMICIL:    Defined  and  discussed. 

2.  Id. :   Of  Choice:   How  established. 

3.  Id.     The  doctrine  of  immiscibility  rejected. 

4.  Id.  :  Extraterritoriality  does  not  change  the  rules  of. 

5.  Id.  :   Id.     An   American  may  acquire  a  domicil  in   China  and  still 

remain  subject  to  the  laws  of  the  United   States. 

6.  Id.  :  Id.  :  Administration  of  Estates.     In  such  cases  the  American 

Courts  in  China,  and  not  those  of  decedent's  domicil  of  origin, 
have  jurisdiction  to  administer  his  estate. 

Littlefield  &  Littlefield,  for  appellant. 

W.  Henry  White  and  Danton  <&  Morse,  for  appellees. 

Spear,  J.: 

This  is  an  appeal  from  the  decree  of  the  probate  court 
for  Waldo  county,  dated  September  11,  1906,  appointing 
Albert  W.  Cunningham  administrator  of  the  estate  of  Henry 
H.  Cunningham,  deceased,  and  comes  here  on  report.  The 
agreed  facts  show  that  Henry  H.  Cunningham  was  born 
in  1838,  in  Swanville,  county  of  Waldo,  Me.,  of  parents  who 
were  citizens  of  the  state  of  Maine  and  resident  and  dom- 
iciled in  said  county  and  state.  His  parents  continued 
to  reside  in  Waldo  county,  Me.,  until  1865,  when  they 
removed  to  Manassas,  Va.  He  resided  with  his  parents  in 
Waldo  county  in  this  state  continuously  from  his  birth  until 
May  3,  1853,  the  last  three  years  at  Belfast,  Me.     In  May, 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.  15,  1909.       137 

1853,  at  the  age  of  15  he  went  to  sea.  In  1854  he  went  to 
Australia.  About  1857  he  was  for  a  time  a  pilot  on  the 
river  at  Shanghai,  China.  He  was  never  married,  and  at 
the  time  of  his  death  his  only  heirs  and  next  of  kin  were 
two  brothers  and  two  sisters.  He  died  at  Shanghai  June 
10,  1905,  leaving  an  estate  of  personal  property  valued  at 
over  $50,000.  He  left  a  will,  in  which  he  undertook  to 
dispose  of  his  estate,  executed  in  the  presence  of  two  wit- 
nesses. After  his  death  proceedings  were  had  before  the 
United  States  Consul  at  Shanghai,  China,  for  the  settle- 
ment and  distribution  of  his  estate,  and  the  various  legatees 
have  received  their  distributive  share,  thru  the  method 
usually  observed  there  in  the  settlement  and  distribution 
of  similar  estates.  The  appellees,  however,  deny  the  right 
of  the  Consular  Court  at  Shanghai  thus  to  settle  and  dis- 
tribute the  estate  of  the  decedent,  upon  the  ground  that  he 
had  never  acquired  a  domicil  in  Shanghai ;  that  his  domicil 
continued,  during  all  the  years  of  his  absence,  to  be  in 
Waldo  county;  that  his  will  was  not  executed  in  accordance 
with  the  laws  of  Maine,  having  but  two  witnesses ;  and  that 
his  estate  should  be  administered  here  as  intestate  property. 
Consequently  they  applied  to  the  probate  court  for  the 
county  of  Waldo  for  the  appointment  of  an  administrator 
to  settle  the  estate.  The  appointment  was  made,  from  the 
decree  of  which  the  appeal  before  us  was  taken. 

It  therefore  appears  that  but  two  issues,  one  of  fact  and 
one  of  law,  are  involved  in  the  determination  of  this  case. 
Each  presents  the  same  question :  Did  the  decedent  have  a 
domicil  in  Shanghai  at  the  date  of  his  death  (1)  as  a 
matter  of  fact;  (2)  as  a  matter  of  law?  The  burden  is 
upon  the  appellants  to  establish  the  affirmative  of  both 
issues.'  We  will  first  proceed  to  the  issue  of  fact.  As- 
suming, arguendo,  that  the  decedent  could  acquire  a  legal 
domicil  in  Shanghai,  do  the  necessary  facts  appear  to  sup- 
port this  conclusion? 

Domicil  may  be  established  in  different  ways,  but  two 
of  which  are  involved  in  this  case — domicil  of  origin  and 
domicil  of  choice.     It  is  conceded  that  the  decedent  had  a 


'  In  re  Tootal's  Trusts,  23  Ch.  Div.  532. 


138  I  EXTRATERRITORIAL  CASES. 

domicil  of  origin  in  Waldo  county.  That  domicil  continued, 
whatever  the  wanderings  of  the  decedent,  until  he  acquired 
a  new  one  in  some  other  locality.  In  order  to  establish  a 
domicil  of  choice  evidence  of  three  important  facts  must 
appear:  (1)  abandonment  of  domicil  of  origin;  (2)  selec- 
tion of  a  new  locus;  (3)  the  animus  manendi.  Technically, 
proof  of  (2)  and  (3)  necessarily  establishes  (1).  Putting 
these  facts  in  the  form  of  a  definition, 

"Domicil  is  said  to  be  the  habitation  fixed  in  any  place,  without 
any  present  intention  of  removing  therefrom." " 

While  the  term  "domicil"  seems  to  possess  more  or  less 
elasticity,  there  can  be  but  one  domicil  of  testacy  or  in- 
testacy. It  is  the  latter  sense  in  which  it  will  be  here 
treated. 

W^e  deem  it  unnecessary  to  consume  much  time  in  dis- 
cussing the  questions  of  fact.  The  evidence  shows  that  the 
decedent  was  in  Waldo  county  but  once  from  the  time  he 
left  it  to  the  time  of  his  death.  In  1866  he  returned  to 
visit  his  father  and  mother,  only  to  find  that  they  had 
changed  their  residence  to  the  state  of  Virginia.  He  had 
now  neither  property  nor  relatives  left  in  this  county.  That 
he  abandoned,  and  intended  to  abandon,  his  domicil  of 
origin  is  too  apparent  to  require  comment.  It  is  also  es- 
tablished that  he  made  his  home,  established  his  business 
and  had  his  headquarters,  from  1869  to  the  date  of  his  death, 
in  Shanghai,  China.  In  fact  the  evidence  in  the  case  does 
not  tend  to  show  that  during  these  years  he  permanently 
resided  at  any  other  place.  We  therefore  find  no  trouble 
in  determining  that  he  selected  Shanghai  as  his  place  of 
business  and  residence  after  1869.  While  there  is  more  or 
less  conflict  in  the  testimony  respecting  his  intention  to 
remain  in  Shanghai  indefinitely,  it  cannot  be  reasonably 
declared  upon  the  evidence  that  he  had  any  present  inten- 
tion of  removing  from  Shanghai  or  of  coming  back  to  the 
state  of  Maine.  In  other  words,  the  court  is  of  the  opinion 
that  had  Henry  H.  Cunningham  resided  in  England,  France, 
or  any  other  state  in  the  Union,  from  the  time  he  left  Belfast 


Oilman  v.  Oilman,  52  Me.  165,  83  Am.  Dec.  502. 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.   15,  1909.       139 

until  the  date  of  his  death,  under  precisely  the  same  cir- 
cumstances that  are  found  in  connection  with  his  residence 
at  Shanghai,  it  would  clearly  appear  that  he  had  acquired 
a  domicil  of  choice  in  either  one  of  these  localities  where  he 
had  so  resided.'^  The  animus  et  factum  concurred,  and  the 
forum  novum  was  substituted  for  the  foru/m  originis. 

The  facts  being  sufficient  to  establish  the  domicil  of  the 
decedent  upon  the  soil  of  any  foreign  country,  including 
that  part  of  China  not  affected  by  treaty  relations,*  we  now 
come  to  a  new  and  more  difficult  problem:  Can  an  Amer- 
ican under  any  circumstances,  whatever  the  facts,  acquire, 
as  a  matter  of  law,  a  domicil  in  Shanghai,  China,  a  place 
where,  by  treaty,  American  law  is  substituted  for  the  Chi- 
nese local  laws?  Altho  the  decedent  may  have  abandoned 
his  domicil  of  origin,  so  far  as  his  acts  and  intentions  were 
concerned,  yet  it  is  conceded,  if  he  was  prevented  by  law 
from  acquiring  a  domicil  of  choice,  that  his  domicil  of 
testacy  or  intestacy  would  continue  from  necessity  to  be 
that  of  origin.  Therefore  the  case  finally  turns  upon  the 
question  whether  the  decedent  could,  as  a  matter  of  law, 
acquire  a  domicil  in  Shanghai.  This  proposition  raises  two 
important  questions:  (1)  whether  any  good  reason  can  be 
adduced  from  all  the  circumstances  of  the  case  why  the 
usual  law  of  domicil  should  not  be  applied  to  the  decedent's 
residence  in  Shanghai;  (2)  whether  any  decision  or  rule 
of  law,  admitting  all  the  facts  of  domicil  intervenes  to 
inhibit  the  acquisition  of  such  domicil.  The  first  question 
involves,  in  limine,  the  effect  upon  the  government  and 
territory  of  Shanghai  of  .the  treaty  relations  between  this 
country  and  China.  These  relations  have  been  so  clearly 
expressed  in  the  English  case,^  that  we  adopt  the  following 
paragraph  as  a  statement  of  their  character: 

"The  treaties  do  not  contain  any  cession  of  territory  so  far  as  re- 
lates to  Shanghai,  and  the  effect  of  them  is  to  confer  in  favor  of 
British  subjects  special  exemptions  from  the  original  territory  juris- 
dictions of  the  Emperor  of  China,  and  to  permit  them  to  enjoy  their 

^Harvard  College  v.  Gore,  5  Pick.   (Mass.)    370. 

*  The  treaties  apply  equally  to  all  Chinese  territory.     Ed. 

'/«  re  Tootal's  Trusts  23,  Ch.  Div.  532. 


140  I  EXTRATERRITORIAL  CASES. 

own  laws  at  a  specified  place.  Similar  treaties  exist  in  favor  of 
other  European  governments  and  the   United   States." 

Of  course  laws  have  been  enacted  by  all  the  governments, 
including  our  ow^n,  to  carry  into  effect  upon  the  territory 
involved,  the  treaty  relations  of  the  parties  to  the  conven- 
tion, but  the  broad  fact  that  the  treaty  territory  is  exempt 
from  local  lav^,  and  under  the  rule  of  foreign  lav^,  raises 
all  the  questions  that  can  affect  the  establishment  of  dom- 
icil  upon  treaty  soil.  We  need  not  then  inquire  concerning 
the  acts  of  Congress.  To  this  situation  is  to  be  applied 
the  \aw  of  domicil,  its  meaning,  the  reasons  for  it,  its 
purpose. 

To  apply  the  law  correctly  we  must  first  determine  pre- 
cisely what  we  mean  by  the  term  "domicil."  While  it  is 
asserted  in  some  courts  that  there  may  be  two  or  more 
domicils,  it  is  yet  true  that  there  can  be  but  one  governing 
the  settlement  of  estates.  We  have  already  referred  to  the 
elements  of  domicil,  the  animus  et  factum,  but  have  not 
determined  whether  they  must  concur  with  reference  to  a 
community,  or  with  reference  to  a  locality,  in  order  to 
establish  domicil;  but  we  are  clearly  of  the  opinion  that 
domicil  in  no  case  can  be  asserted  independent  of  locality. 
It  expresses  but  little   relation  to  society   or  community. 


"The  term  'inhabitant,'  as  used  in  our  laws  and  in  this  statute, 
means  something  more  than  a  person  having  a  domicil.  It  imports 
citizenship  and  municipal  relations,  whereas  a  man  may  have  a 
domicil  in  a  country  to  which  he  is  alien,  and  where  he  has  no 
political  relations.  As  if  an  American  citizen  should  go  to  London 
or  Paris  with  an  intention  to  remain  there  in  business  for  the  rest 
of  his  life,  or  if  an  English  or  French  subject  should  come  here  with 
the  same  intention,  they  would  respectively  acquire  a  domicil  in  the 
country  in  which  they  should  so  live,  but  would  have  no  political 
relations  except  that  of  local  allegiance  to  such  country." " 

"The  idea  of  domicil,  independent  of  locality,  and  arising  simply 
from  membership  of  a  privileged  society,  is  not  reconcilable  with  the 
numerous  definitions  of  domicil  to  be  found  in  the  books.  In  most, 
if  not  all  of  those  from  the  Roman  Code  to  Story's  Conflict,  domicil 
is  defined  as  a  locality — as  the  place  where  a  man  is,  his  principal 


Harvard  College  v.   Gore,  5   Pick.    (Mass.)    370. 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.   15,   1909.       141 

establishment,  the  true  home.  But  it  is  useless  to  pursue  the  topic 
farther.  Their  Lordships  are  satisfied  that  there  is  neither  principle 
nor  authority  for  holding  that  there  is  such  a  thing  as  domicil  aris- 
ing from  society  and  not  connected  with  a  locality."  ' 

This  conclusion  is  in  full  harmony  with  the  well-settled 
doctrine  in  this  country.  That  is,  ordinarily  speaking,  if 
a  person  has  left  his  domicil  of  origin  and  selected  another 
locality,  whether  in  another  state  or  a  foreign  country,  in 
which  his  home  is  located  and  his  business  established, 
without  any  intention  of  leaving,  that  locality  is  his  dom- 
icil. It,  therefore,  appears  that  "domicil"  in  its  usual 
sense  does  not  present  a  complex  or  difficult  problem.  Or- 
dinarily it  is  a  pure  question  of  fact.     *     * 

"No  exact  definition  can  be  given  of  domicil.  It  depends  upon 
no  one  fact  or  combination  of  circumstances,  but  from  the  whole 
taken  together,  which  must  be  determined  in  each  particular  case. 
It  is  a  maxim  that  every  man  must  have  a  domicil  somewhere,  and  also 
that  he  can  have  but  one.  It  follows  that  his  existing  domicil  con- 
tinues until  he  acquires  another,  and,  vice  versa,  by  acquiring  a  new 
domicil  he  relinquishes  his  former  one.  *  Very  slight  circumstances 
must  often  decide  the  question.  It  depends  upon  the  preponderance 
of  the  evidence  in  favor  of  two  or  more  places,  and  it  often  appears 
that  the  evidence  of  facts  tending  to  establish  a  domicil  in  one  place 
would  be  entirely  conclusive  were  it  not  for  the  existence  of  facts 
and  circumstances  of  a  still  more  conclusive  and  decisive  character, 
which  fix  it  beyond  question  in  another." ' 

Therefore  it  is  plain  that  it  is  the  place,  not  the  local  laws, 
that  becomes  of  paramount  importance  in  determining  the 
question  of  domicil;  where,  not  under  what  laws,  do  the 
animus  et  factum  concur. 

There  are  now  47  states  in  the  Union,  nearly  all  differing 
in  some  respects  with  reference  to  the  laws  of  descent,  the 
right  of  inheritance,  and  the  distribution  of  estates;  but,  in 
whatever  state  the  decedent  may  be  found,  to  determine  his 
domicil  no  inquiry  is  made  as  to  what  laws  shall  govern  the 
settlement  of  his  estate,  but  where  did  he  have  a  permanent 
abode.  The  same  is  true  of  the  laws  of  Great  Britain. 
England,  Scotland,  Ireland,  and  Wales,  each  has  its  own 
peculiar   laws  governing  the   descent  and   distribution   of 


In  re  Tootal's  Trusts,  23  Ch.  Div.  532. 
'Thorndike  v.  City  of  Boston,  1  Mete.   (Mass.)    242. 


142  I  EXTRATERRITORIAL  CASES 

property,  yet  these  laws  are  never  consulted  upon  the  ques- 
tion of  domicil.     The  place  is  the  issue."     *     *     * 

Now,  then,  if  the  true  legal  meaning  of  domicil  is  to  fix 
a  locality,  what  is  the  reason  for  the  law?  Why  may  not 
an  estate  be  settled  wherever  the  owner  happens  to  de- 
cease? The  reason  is  manifest.  It  is  to  establish  stability 
and  certainty  with  respect  to  the  place  where  estates  are 
to  be  settled.  Otherwise  great  confusion  and  numerous 
difficulties  might  follow  an  attempt  to  settle  in  distant  local- 
ities in  which  the  decedent  might  happen  temporarily  to 
reside.  It  has  therefore  from  reason  and  necessity  been 
declared  that  all  estates  must  be  refen^ed  to  some  locality. 
For  the  purpose  of  making  the  place  definite  and  certain, 
it  has  been  established  as  a  rule  of  law  that  it  shall  be 
the  soil  where,  at  the  time  of  decease,  a  person  has  a  per- 
manent abode,  without  any  intention  of  removing  therefrom. 
While  the  determination  of  domicil  refers  the  settlement  of 
an  estate  to  a  particular  locality,  it  necessarily  subjects  it 
to  the  laws  of  that  locality ;  but  the  underlying  reason  for 
the  law  of  domicil  is  not  to  subject  an  estate  to  any  par- 
ticular law,  but  to  fix  its  abode. 

But  it  is  forcibly  urged  that  the  term  "domicil"  neces- 
sarily implies  subjection  and  obedience  to  the  local  laws, 
and  that  this  cannot  be  said  to  be  true  of  a  residence  in 
Shanghai.  The  first  part  of  the  proposition  is  admitted, 
but  the  conclusion  is  not  conceded.  No  good  reason  ap- 
pears in  support  of  it.  What  is  meant  by  local  laws?  Un- 
doubtedly that  code  of  laws  which  governs  the  affairs  of 
a  certain  prescribed  jurisdiction.  The  laws  of  Maine  are 
limited  in  authority  to  the  territory  of  Maine.  They  have 
no  force  beyond  the  state  line.  They  are  strictly  local. 
The  same  is  true  of  the  jurisdictional  limitations  of  every 
foreign  state;  that  is,  the  local  laws  are  considered  to  be 
limited  to  the  territory  over  which  their  jurisdiction  ex- 
tends. The  ownership  of  the  soil,  therefore,  controls  the 
establishment  of  all  local  laws.  Without  consent  of  the 
owner,  no  extraterritorial  law  can  be  enacted  within  an 
independent  jurisdiction,  or  extended  to  it.  China  is  in- 
dependent.    *     *     * 


Dr.  Munroe's  Case,  5  Madd.  379. 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.  15,  1909.       143 

"The  sovereignty  over  the  soil  of  Shanghai  remains  vested  in  the 
Emperor  of  China  with  this  exception :  That  he  has  by  the  treaty 
bound  himself  to  permit  British  subjects  to  reside  at  the  place,  for 
the  purpose  of  commerce  only,  without  interference  on  his  part,  and 
to  permit  the  British  Crown  to  exercise  jurisdiction  there  over  its 
own    subjects,   but  over  no   other   persons."  ^" 

This  description  applies  equally  to  the  American  treaty. 
Therefore  whatever  laws  may  have  been  extended  by  Con- 
gress to  Shanghai  are  operative,  not  upon  American  soil, 
but  upon  the  territory  of  the  Chinese  Empire.  How  do 
these  laws  reach  there?  By  treaty,  permission  of  the  Em- 
peror. 

Now  it  will  probably  be  admitted  that,  had  the  Emperor 
extended  by  edict  to  this  territory  the  identical  enactments 
now  governing  Americans  residing  there,  a  Chinese  domicil 
could  be  acquired  under  the  laws  thus  promulgated.  It  is 
true  that,  instead  of  an  edict  declaring  the  law,  the  Em- 
peror by  consent  permitted  Congress  to  extend  its  statutes 
to  the  government  of  Americans  in  this  treaty  port.  In 
other  words,  if  the  identical  laws  which  now  govern  Amer- 
icans upon  this  territory  had  been  promulgated  by  edict, 
instead  of  permitted  by  treaty,  the  estate  of  the  decedent 
would,  without  question,  have  been  conceded  a  domicil  in 
Shanghai.  Now,  then,  as  a  practical  question,  what  logical 
reason  can  be  given  for  declaring  the  existence  of  domicil 
in  the  one  case  and  not  in  the  other?  The  decedent  would 
have  lived  under  precisely  the  same  laws  and  upon  the 
same  foreign  soil.  Altho  the  Emperor  had  suspended 
some  of  the  Chinese  laws  and  permitted  the  extension  of 
American  law  to  the  territory,  yet  the  source  of  the  law 
was  the  Emperor,  who  had  never  released  his  sovereignty 
over  the  soil. 

Upon  this  point  we  quote  from  an  able  article  ''  by  Prof. 
Huberich  of  Stanford  University.  In  his  analysis  of  Mr. 
Justice  Chitty's  opinion,  he  says : 

"It  is  quite  immaterial  that  the  Chinese  law  provides  that  persons 
of  British  nationality  shall  be  governed  by  the  rules  of  law  prevail- 
ing in  England,  or  by  such  laws  as  may  be  enacted  and  made  ap- 
plicable to   them   by  the   English    authorities.     The    English    law   is 

'"In  re  Tootal's  Trusts,  25  Ch.   Div.  532. 
"  Law   Quarterly    Review,   XXIV,    444. 


144  I  EXTRATERRITORIAL  CASES. 

operative  in  Shanghai  as  to  certain  persons  and  certain  transactions 
only  because  it  is  permitted  and  adopted  by  the  territorial  sovereign." 

The  effect,  also,  of  declaring  domicil  upon  Chinese  soil 
would  be  precisely  the  same  whether  the  law  governing  the 
locus  was  Chinese  or  American.  In  either  case  it  would 
be  the  law  that  covered  that  particular  locality  with  respect 
to  Americans,  and,  as  to  them,  would  become  the  local  law. 

It  would  appear,  then,  that  the  only  reason  assigned  for 
withholding  from  the  decedent  the  right  of  Chinese  domicil 
is  that,  while  he  lived  upon  Chinese  soil,  under  Chinese 
sovereignty,  he  was  subject  to  the  laws  extended  to  the 
particular  territory  by  treaty  instead  of  by  edict.  We  are 
able  to  discover  neither  logic  nor  reason  for  the  distinction 
here  suggested.  The  fundamental  idea  of  domicil  does  not 
depend  upon  any  distinction  with  respect  to  the  source  of  the 
local  law.  A  Chinese  domicil  gives  the  decedent's  estate 
a  fixed  place  of  abode,  and  subjects  it  to  the  law  governing 
the  locality.  Whether  American  law  or  Chinese  law,  it  is, 
nevertheless,  the  law  of  the  place,  as  to  American  citizens. 

Prof.  Huberich  states  it  this  way : 

"Where  the  requisite  factum  and  animus  are  shown  to  exist  there 
is  no  valid  reason  why  an  Englishman  or  an  American  should  not  be 
held  to  acquire  a  domicil  in  China.  In  respect  of  all  matters  which 
private  international  law  refers  to  the  law  of  the  domicil  he  would 
be  governed  by  the  Chinese  law,  the  law  of  the  territorial  sovereign. 
The  law  to  which  he  would  be  subject  would  be  none  the  less  the  law 
of  China  because  it  provides  that  persons  of  British  and  American 
nationality  shall  be  governed  by  such  laws  as  their  respective  coun- 
tries may  enact  to   govern   their   nationals   in    China." 

In  the  case  before  us  the  effect  of  denying  a  Chinese 
domicil  absolutely  defeats  the  will  of  the  testator  and 
diverts  the  transmission  of  his  property  into  unintended 
and  perhaps  objectionable  channels.  On  the  other  hand, 
no  inequitable  result  can  be  reasonably  predicted  upon 
the  declaration  of  such  domicil.  No  injury  can  fol- 
low. The  estate,  if  testate,  is  disposed  of  in  accordance 
with  the  terms  of  the  will,  precisely  as  it  would  be 
here.  That  the  will  was  attested  by  but  two  witnesses 
instead  of  three,  as  required  in  Maine,  is  immaterial  to  the 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.  15,  1909.       145 

issue.^-  If  intestate,  the  property  or  the  estate  is  legally 
administered,  as  appears  from  the  opinion  ^^  of  L,  R.  Wilfley, 
Judge  of  the  United  States  Court  for  China. 

In  fine,  in  considering  the  reasons  why  the  American  law 
of  domicil  should  not  apply  to  American  nationals  in  Shang- 
hai, under  the  circumstances  of  this  case,  the  court  is  unable 
to  discover  any  substantial  objection,  nor  has  any  been 
pointed  out  in  any  cited  case.  Jacobs  in  a  brief  summary 
of  his  analysis  of  Justice  Chitty's  opinion,  pertinently  sug- 
gests that  no  reasons  are  assigned  even  in  this  case,  which, 
by  dictvmi,  squarely  denies  the  right  of  Chinese  domicil. 

"Here,  then,  we  have,  according  to  the  uncontradicted  evidence  (1) 
complete  abandonment  of  English  domicil  of  origin;  and  (2)  residence 
in  China  With,  intention  to  remain  there  permanently.  If  this  case 
is  to  be  accepted  as  an  authority  upon  this  point,  therefore,  something 
more  is  necessary  for  the  establishment  by  an  American  or  a  European 
of  his  domicil  in  a  country  in  which  European  civilization  does  not 
prevail  than  abandonment  of  his  domicil  of  origin,  and  mere  residence 
with  intention  to  remain  permanently.  What  more  is  necessary  has 
never  been  pointed  out,  altho,  doubtless,  as  Dr.  Lushington  intimates, 
a  change  of  religion  would  be  deemed  sufficient." " 

The  suggestion  hinted  at  by  the  author,  touching  the  effect 
of  religion  upon  the  domicil  of  American  and  European 
nationals  in  the  East,  is  based  upon  a  dictum  in  a  passage 
in  which  Lord  Stowel  says: 

"In  the  western  parts  of  the  world  alien  merchants  mix  in  the 
society  of  the  natives,  access  and  intermixtures  are  permitted,  and 
they  become  incorporated  to  almost  the  full  extent;  but  in  the  East, 
from  the  oldest  times,  an  immiscible  character  has  been  kept  up. 
Foreigners  are  not  admitted  into  the  general  body  and  mass  of  the 
society  of  the  nation;  they  continue  strangers  and  sojourners  as  all 
their  fathers  were."  *^ 


"Lyon  V.  Ogden,  85  Me.   374,  27  Atl.  258. 

'^In  re  Roberts,'  Will,  May  15,  1907. 

In  this  connection  it  may  be  proper  to  add  that  the  record  shows 
that  108  estates,  testate  and  intestate,  have  been  administered  thru 
the  Consular  Court  at  Shanghai  since  1865. 

"  Jacobs,  Domicil,  sec.   361. 

"The  Indian  Chief,  3  C.  Rob.  Adm.  29. 

Dicta  of  a  similar  import  are  found  in  Maltas  v.  Maltas,  1  Rob. 
Ecel.  67-80,  and  In  re  Tootal's  Tioists,  23  Ch.  Div.  532. 

14008  O.  W. 10 


146  I  EXTRATERRITORIAL  CASES. 

In  the  cases  cited  the  doctrine  of  immiscibility  applies 
both  to  presumptions  of  law  and  fact.  Mr.  Justice  Chitty 
defines  the  doctrine  as  follows : 

"The  difference  between  the  law,  manners,  and  customs  of  Chinese 
and  Englishmen  is  so  great  as  to  raise  every  presumption  against 
such   a  domicil."  " 

That  is,  an  American  may  marry  a  Chinese  woman,  es- 
tablish his  business  upon  Chinese  soil,  accumulate  a  fortune 
there,  raise  a  family,  and  declare  his  intentions  of  ever 
remaining,  yet  the  influence  of  religion  and  customs  of  the 
community  in  which  he  has  chosen  to  live  and  die  is  pre- 
sumed to  be  so  repugnant  to  the  idea  of  western  civilization 
as  to  rebut  all  evidence  of  intention,  however  conclusive. 
The  opinion  of  the  learned  justice,  however,  concedes  that 
if  the  strong  presumption  against  intention  could  be  over- 
come, a  domicil  of  choice  in  China  might  be  acquired.  We 
think  it  can  be  overcome. 

In  this  enlightened  age  the  doctrine  of  immiscibility  can- 
not be  accorded  such  weight  as  to  establish  a  legal  pre- 
sumption against  all  other  evidence  tending  to  prove  animus. 
In  American  jurisprudence,  at  least,  it  should  be  allowed 
to  slumber  with  Quaker  persecution,  Salem  witchcraft,  and 
other  kindred  dogmas.  Since  the  dictum  of  immiscibility 
was  first  declared,  the  world  has  experienced  a  revolution 
touching  the  national,  commercial,  and  trade  relations  be- 
tween the  nations  of  the  East  and  those  of  the  West.  Our 
conclusion,  therefore,  upon  the  first  proposition  is  that  no 
sound  reason  can  be  adduced  against  the  practical  applica- 
tion of  the  American  law  of  domicil  to  Americans  residing 
in  China,  when  the  animus  et  factum  are  found  to  concur. 

This  brings  us  to  the  second  general  proposition  involved 
in  the  discussion :  Is  there  any  established  principle  of  law 
which  intervenes  to  prevent  the  practical  application  of  the 
rules  of  American  law  of  domicil  to  Americans  residing  in 
China?  This  precise  point,  so  far  as  we  are  able  to  dis- 
cover, has  never  been  decided  by  any  court  of  last  resort. 
It  has,  however,  been  recently  discussed  and  decided  in  the 


In  re  Tootal's  Trusts,  23  Ch.  Div.  532. 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.  15,  1909.       147 

negative  by  L.  R.  Wilfley,  Judge  of  the  United  States  Court 
at  Shanghai,  China. 

The  leading  authority  upon  this  issue  is  the  English 
case/'  decided  in  1883,  in  an  opinion  by  Mr.  Justice  Chitty. 
It  is,  perhaps,  fair  to  say  that  while  the  decision  upon  the 
point  was  pure  dictum,  it  nevertheless,  in  legal  effect,  denies 
the  possibility  of  a  domicil  of  choice  by  a  British  subject. 
The  issue  presented  to  the  court  in  this  case  involved  the 
question  of  an  Anglo-Chinese  domicil.  The  real  issue  as 
stated  by  Mr.  Justice  Chitty  is :  "On  principle,  then,  can  an 
Anglo-Chinese  domicil  be  established?" 

Following  the  analogy  of  the  early  English  cases,  estab- 
lishing an  Anglo-Indian  domicil  for  English  subjects,  resid- 
ing in  India  as  members  of  the  old  East  India  Company,  it 
was  urged  that  an  Anglo-Chinese  domicil  might  be  estab- 
lished for  Tootal,  an  English  subject  who  had  lived  in  China 
with  the  animus  et  factum  required  to  establish  domicil; 
therefore  the  direct  issue  of  Chinese  domicil  was  not  in- 
volved, and  the  case  is  not  discussed  by  the  learned  justice 
from  that  standpoint,  as  appears  from  the  following  quota- 
tion from  his  opinion : 

"In  these  circumstances  it  was  admitted  by  the  petitioners'  counsel 
that  they  could  not  contend  that  the  testator's  domicil  was  Chinese. 
This  admission  was  rightly  made.  The  difference  between  the  re- 
ligion, laws,  manners,  and  customs  of  the  Chinese  and  of  Englishmen 
is  so  great  as  to  raise  every  presumption  against  such  a  domicil,  and 
brings  the  case  within  the  principles  laid  down  by  Lord  Stowell  in 
his  celebrated  judgment."  ^' 

From  this  paragraph  it  will  be  observed  that  the  question 
of  Chinese  domicil  was,  by  express  admission  of  counsel, 
eliminated  from  the  case.  The  discussion  after  this  ad- 
mission was  upon  a  question  not  in  issue,  and  necessarily 
pure  dictum,  as  it  was  not  in  any  sense  essential  to  the 
decision  of  the  case.  But  the  statement  of  Mr.  Justice 
Chitty  immediately  following  this  admission  is  the  remark 
upon  which  he  has  established  the  legal  impossibility  of 

"In  re  Tootal's  Trusts,  23  Ch.  Div.  532. 

"The  Indian  Chief,  3  Rob.  Adm.  29,  and  by  Dr.  Lushington  in 
Maltas  V    Maltas,  1  Rob.  Ecc.  67,  80,  81. 


148  I  EXTRATERRITORIAL  CASES. 

acquiring  a  Chinese  domicil,  and  is  therefore  founded  upon 
dictum,  and  dictum  alone. 

In  the  Indian  Chief  Case,  Lord  Stowell  was  considering 
the  question  of  the  condemnation  of  a  ship  and  cargo.  The 
ship  was  charged  with  the  offense  of  trading  with  the  public 
enemy.  The  case  involved  the  question  of  enemy  character 
as  determined  by  residence  and  protection.  The  determina- 
tion of  these  questions  did  not  in  any  sense  involve  the 
capacity  of  either  party  to  acquire  a  residence  in  a  foreign 
country.  Yet  upon  these  facts  is  based  the  opinion  of  Lord 
Stowell,  in  which  he  speaks  of  the  "immiscibility"  of  char- 
acter in  the  paragraph  already  quoted  as  a  reason  why  an 
Eastern  domicil  cannot  be  acquired  by  a  British  subject, 
and  to  which  Mr.  Justice  Chitty  alludes  as  a  precedent  for 
his  conclusion.  In  the  case  ^^  decided  by  Dr.  Lushington, 
the  question  was  as  to  the  rule  that  should  govern  the  de- 
scent of  the  personal  property  of  John  Maltas  who  died  in 
Smyrna.  One  of  the  questions  discussed  was  whether  the 
testator  had  acquired  a  residence  in  Smyrna ;  he  having  had 
a  domicil  of  origin  in  Great  Britain.  While  this  question 
was  alluded  to,  it  is  apparent  from  a  most  cursory  examina- 
tion that  the  question  of  domicil  was  in  no  sense  involved 
in  the  case.  With  reference  to  the  question  of  domicil  the 
court  summed  up  its  conclusions  as  follows : 

"I  wish  to  observe  that  I  am  desirous  not  to  be  supposed  to  have 
given  an  opinion  upon  any  question  not  necessary  to  be  decided  in 
this  case;  my  judgrment,  therefore,  does  not  affect  the  question  of 
domicil. 

"I  give  no  opinion,  therefore,  w^hether  a  British  subject  can  or 
cannot  acquire  a  Turkish  domicil;  but  this  I  must  say:  I  think  every 
presumption  is  against  the  intention  of  British  Christian  subjects  vol- 
untarily becoming  domiciled  in  the  dominions  of  the  Porte." 

Yet  the  last  part  of  this  paragraph  is  the  passage  cited 
as  a  precedent. 

It  is  obvious  then  that  the  extracts  cited  from  these  cases 
as  precedents  are  themselves  pure  dicta.  It  as  manifestly 
follows  that  Mr.  Justice  Chitty's  discussion  upon  the  ques- 
tion of  Chinese  domicil  was  not  only  dictum  itself,  but 
founded  upon  dictum.     The  cases,  therefore,  upon  which  he 


Maltas  V.  Maltas,  1  Rob.  Ecc.  67. 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.   15,   1909.       149 

relies  for  his  conclusion  by  no  means  justify  the  statement 
that  "the  difference  between  the  religion,  laws,  and  manners 
of  the  Chinese  and  of  Englishmen  is  so  great  as  to  raise 
every  presumption  against  such  a  domicil,"  and  Tootal's 
Trusts  cannot  be  regarded  as  an  authority  for  denying,  as 
a  presumption  of  law,  the  incompetency  of  acquiring  a 
Chinese  domicil. 

We  agree,  however,  with  Mr.  Justice  Chitty  upon  the 
real  issue  before  him  for  decision.  An  Anglo-Chinese  dom- 
icil would  certainly  be  of  immiscible  character.  The 
Anglo-Indian  domicil  was  so  regarded  by  Mr.  Justice  Chitty 
himself  who  says  of  the  cases  establishing  the  doctrine: 

"These  authorities  are  generally  admitted  to  be  anomalous.  While 
they  may  be  regarded  as  anomalous  in  an  attempt  to  establish  a 
double  domicil,  a  thing  unknown  to  any  rule  of  law  and  impossible 
in  practice,  they  may  be  made,  by  a  fair  analysis,  precedents  in  fact, 
if  not  in  name,  for  a  straight  Indian  domicil  in  the  anomalous  cases 
considered,  and  for  a  straight  Chinese  domicil  in  the  case  at  bar." 

It  its  practical  application,  what  does  Anglo-Indian  mean? 
It  is  simply  the  invention  of  a  name.  No  new  feature  except 
the  name  appeared  in  any  of  these  cases  that  did  not  com- 
port with  all  the  general  rules  of  acquiring  a  domicil  in 
India.  In  alluding  to  this  compound  domicil  Baggallay, 
L.  J.,  remarks : 

"There  are  some  anomalous  cases  in  which  a  subject  of  the  Queen 
had  entered  into  the  service  of  the  Old  East  India  Company,  and  it 
was  held  that  he  had  acquired  what  was  called  an  Anglo-Indian  dom- 
icil." =« 

The  phrase  "what  was  called  an  Anglo-Indian  domicil"  is  sig- 
nificant, and  disclosed  that,  in  the  mind  of  the  learned 
justice,  no  such  domicil  could  be  legally  said  to  exist.  It 
appears,  as  already  stated,  that  the  Anglo-Indian  domicil 
was  declared  upon  the  ground  that  the  East  India  Company 
was  a  permanent  institution  in  India,  and  that  those  persons 
who  entered  its  employ  were,  vpso  facto,  presumed  to  have 
abandoned  their  domicil  of  origin  and  to  have  become  per- 
manently located  in  India. 

Cotton,  L.  /.,  in  the  same  case,  takes  emphatic  exception 

^'' Ex  parte  Cunningham,  In  re  Mitchell,  13  Q.  B.  Div.  418. 


150  I  EXTRATERRITORIAL  CASES. 

to  the  elements  of  fact  which  the  old  cases  declare  are 
capable  of  constituting  an  Anglo-Indian  domicil.     He  says : 

"It  is  said  that  a  Scotchman  by  entering  the  service  of  the  East 
India  Company  acquired  an  Anglo-Indian  domicil.  I  take  exception 
to  the  expression  'by  entering  the  service'  of  the  East  India  Company. 
The  ground  of  the  decision  in  those  cases  was  that  the  officer  was 
residing  in  India  under  circumstances  which  showed  that  he  intended 
to  abandon  his  domicil  of  origin,  under  circumstances  which  rendered 
it  his  duty  to  reside  there  permanently.  It  was  not  the  entering  the 
service,  but  the  residence  in  India  under  circumstances  which  required 
him  to  remain  there,  which  caused  the  change  of  domicil." 

This  is  really  what  was  said  by  Wood,  V.  C. : 

"When  an  officer  accepts  a  commission  or  employment,  the  duties 
of  which  necessarily  require  residence  in  India,  and  there  is  no  stip- 
ulated period  of  service,  and  he  proceeds  to  India  accordingly,  the 
law,  from  such  circumstances,  presumes  an  intention  consistent  with 
his  duty,  and  holds  his  residence  to  be  animo  et  facto  in  India."  " 

In  other  words,  the  learned  justice  eliminates  the  East 
India  Company,  which  made  whatever  domicil  was  acquired 
dependent,  not  upon  the  East  India  Company  at  all,  but 
upon  a  permanent  residence  in  India.  But  eliminating  the 
East  India  Company  eliminates  the  component  "Anglo" 
from  Anglo-Indian,  and  leaves  the  Indian  domicil  only. 
The  logic  of  these  cases  is  that  "Anglo-Indian"  was  a  mis- 
nomer, as  duty  cannot  be  considered  superior  to  volition  in 
power  to  fix  intention. 

On  the  other  hand,  the  whole  trend  of  modern  authority 
is  in  opposition  to  the  dictum  advanced  in  Tootal's  Trusts. 
Judge  Wilfley  of  the  United  States  Court  for  China  sitting 
at  Shanghai  in  1907,  announced  a  strong  opinion  --  in  which 
he  rejects  the  dictum  in  Tootal's  Trusts  and  comes  to  a 
directly  opposite  conclusion.  The  facts  in  the  case  are  very 
similar  to  those  in  the  case  at  bar.  After  an  elaborate  and 
exhaustive  review  of  the  authorities  and  text-writers,  he 
comes  to  the  conclusion : 

1.  "That  there  is  nothing  in  the  theory  or  practical  operation  of 
the  law  of  extraterritoriality  inconsistent  with  or  repugnant  to  the 
application  of  the  American  law  of  domicil  to  American  citizens  re- 

"  Forbes  v.  Forbes,  Kay,  356,  23  L.  J.  Ch.  724. 
°  In  re  Allen's  Will,  (inte,  p.  92. 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.   15,   1909.        151 

siding  in  countries  with  which  the  United  States  has  treaties  of 
extraterritoriality. 

2.  "That  Dr.  Young  J.  Allen,  having  lived  in  China  for  a  period 
of  47  years,  and  having  expressed  his  intention  to  live  there  perma- 
nently, thereby  acquired  an  extraterritorial  domicil  in  China;  con- 
sequently this  court  in  the  administration  of  his  estate  will  be  guided 
by  the  law  which  Congress  has  extended  to  Americans  in  China,  which 
is  the  common  law." 

We  wish  to  say  however  that  we  do  not  agree  with  Judge 
Wilfley  in  employing  the  name  "extraterritorial  domicil." 
It  appears  to  be  inconsistent  with  the  fundamental  idea  of 
domicil,  which,  as  we  have  endeavored  to  show,  is  a  rela- 
tion between  an  individual  and  a  particular  locality  or 
country.  The  fact  that  the  law  governing  the  particular 
locality  is  extraterritorial  does  not  make  the  domicil  extra- 
territorial, since  it  is  immaterial  upon  the  question  of 
domicil  from  what  source  the  law  is  proclaimed,  as  before 
shown. 

This  same  view  is  taken  by  Prof.  Huberich  in  the  article 
already  alluded  to,  in  which  he  says : 

"The  choice  of  the  words  'extraterritorial  domicil'  is  unfortunate, 
in  that  it  is  likely  to  convey  the  idea  of  exemption  from  the  laws  of 
the  territorial  sovereign." 

Sir  Francis  Piggott,  Chief  Justice  of  Hongkong,  in  a 
recent  work,  expresses  the  opinion 

"that  when  the  question  is  again  raised  it  will  be  found  that  the 
principles  established  by  the  most  recent  cases  necessitate  a  re- 
consideration of  the  law  laid  down  on  the  subject  by  Mr.  Justice 
Chitty." 

"A  man  may  set  up  his  home  in  a  treaty  port;  he  may  have 
banished  forever  the  idea  of  returning  to  his  native  country;  the 
animus  manendi  may  be  clear,  without  shadow  of  doubt;  on  the  hy- 
pothesis, too,  there  is  a  body  of  law  regulating  the  community.  Why 
is  it  impossible,  then,  for  the  ordinary  principles  of  the  law  to  be 
applied,  and  for  the  personal  relations  of  the  permanent  members  of 
the  community  to  come  under  that  law  permanently  as  the  law  of  the 
domicil  of  their  choice,  of  those  who  are  born  members  of  the  com- 
munity as  the  law  of  the  domicil  of  their  origin?  *  *  *  Linking 
these  two  propositions  together,  it  is  suggested  that  the  inevitable 
result  is  a  modification  of  Lord  Watson's  interpretation  of  the  law 


152  I  EXTRATERRITORIAL  CASES. 

of  domicil  referred  to  above  on  the  following  lines:  The  law  which 
regTilates  a  man's  personal  status  must  be  that  of  the  governing 
power  in  whose  dominions  his  intention  is  permanently  to  reside, 
or  must  be  so  recognized  and  established  by  that  governing  power 
as  to  be  in  fact  the  law  of  the  land."  " 

Lord  Watson's  interpretation  was  that  domicil  must  be 
referred  to  locality,  and  not  community. 

Hall,  a  distinguished  authority  on  international  law,  also 
takes  issue  with  the  views  expressed  in  Tootal's  Trusts  upon 
the  ground  of  expediency,  and  says: 

"It  is  perhaps  to  be  regretted  that  a  change  in  the  law  is  not  made, 
which  a  short  Order  in  Council  could  easily  effect.  Anglo-Oriental 
domicil  has  its  reasonable,  it  may  almost  be  said  its  natural,  place."  ^' 

This  suggestion  clearly  shows  that  in  the  opinion  of  the 
learned  author  the  doctrine  of  immiscibility,  which  has 
been  made  the  fundamental  objection  to  the  possibility  of 
an  Eastern  domicil,  should  no  longer  be  regarded  as  a 
potential  reason  for  denying  such  domicil.  He  further  says 
upon  the  question  of  expediency : 

"So  long  as  persons  have  not  identified  themselves  with  the  life 
of  a  new  community,  they  must  keep  each  his  own  law;  but,  as  soon 
as  they  have  shov^m  their  wish  and  intention  to  cut  themselves  adrift 
from  the  association  of  birth,  they  prove  their  indifference  to  the 
personal  law  attendant  on  their  domicil  of  origin.  There  is  therefore 
no  reason  why  simplicity  and  unity  of  law  should  not  be  gained  for 
British  subjects  by  attributing  community  in  the  laws  of  England  to 
all  of  European  blood.  There  is  also  every  reason  for  avoiding  very 
grave  difficulties  of  another  kind  which  are  opened  thru  in- 
variable preservation  of  the  domicil  of  origin.  English  families, 
even  in  the  present  day,  often  remain  thru  more  than  one  gen- 
eration in  oriental  countries  as  their  permanent  place  of  abode.  For- 
merly the  history  of  persons  whose  domicil  might  become  a  matter  of 
importance  was  generally  known  sufficiently  well.  Many  are  now 
of  obscure  antecedents,  and  of  an  origin  uncertain  among  the  num- 
erous places  from  which  British  subjects  can  derive.  As  no  domicil 
can  be  acquired  in  an  Anglo-Oriental  community,  it  becomes  every 
year  more  probable  that  cases  will  occur  in  which  the  determination 
of  the  domicil  of  a  father,  perhaps  of  a  grandfather,  may  become 
necessary,  and  in  which  it  may  be  equally  impracticable  to  impute 
an  English  domicil  or  to  attribute  any  other  with   fair  probability. 

''Piggott,  Exterritoriality   (new  ed.  1907),  232  et  seq. 
"Foreign  Jurisdiction  of  the   British  Crown    (1894),   184. 


MATHER  ET  AL.  V.  CUNNINGHAM,  APR.  15,  1909.        153 

It  would  be  a  great  advantage  that  in  such  cases  there  should  be  a 
fixed  rule  which  should  correspond  with  the  obvious  facts,  and  that 
the  courts,  instead  of  searching  with  infinite  trouble  and  expense  for 
an  ancestral  domicil,  should  be  enabled  to  find  that  a  domicil  had 
been  acquired  in  the  Eastern  country  which  carried  with  it  the  ap- 
plication of  English  law." 

Prof.  Huberich  upon  this  point  says : 

"The  English  view,  it  is  submitted,  i?  based  on  erroneous  con- 
ceptions of  domicil  and  extraterritoriality.  It  is  supported  by  the 
authority  of  a  single  case  (Tootal's  Trusts),  has  been  vigorously  at- 
tacked, and  may  be  repudiated  by  courts  not  bound  by  the  precedent." 

In  reviewing  Judge  Wilfley's  opinion,  he  says: 

"The  result  of  the  case  is  correct." 

Westlake  takes  the  same  view  and  points  out  the  incon- 
sistency of  the  opinion  in  which  Mr.  Justice  Chitty  declared : 

"There  is  no  authority  that  I  am  aware  of  in  English  law  that 
an  individual  can  become  domiciled  as  a  member  of  a  community  which 
is  not  the  community  possessing  the  supreme  or  sovereign   power." 

having  said  in  the  same  connection: 

"Jt  may  well  be  that  a  Hindoo  or  Mussulman  sitting  in  British 
India,  and  attaching  himself  to  his  own  religious  sect  there,  would 
acquire  an  Anglo-Indian  domicil." 

Westlake  says: 

"The  Hindoos  or  Mussulmans  are  as  little  the  supreme  or  ter- 
ritorial power  in  India  as  the  English  are  such  in  China."  " 

This  discrepancy  serves  to  point  out  the  complexities  that 
arise  in  an  attempt  to  deny  or  modify  the  application  of 
the  national  and  established  rules  of  law. 

The  theory  of  this  opinion  is  in  accordance  with  the 
application  of  the  ordinary  rules  of  law  touching  the  ques- 
tion of  domicil.  We  have  found  no  difficulty,  and  discover 
no  error,  in  referring  the  existence  of  domicil  to  locality. 
We  allude  to  this  matter  for  the  purpose  of  avoiding  any 
confusion  which  might  rise  in  reading  the  text-writers  cited 
in  connection  with  the  opinion.  While  they  all  advocate 
the  legal  propriety  of  holding  that  an  American  national  or 
an  English  national  may  acquire  a  domicil  in  a  treaty  port, 
they  suggest,  if  we  interpret  them  correctly,  that  such  a 


Private  International  Law    (4th   ed.),   319. 


154  I  EXTRATERRITORIAL  CASES. 

domicil  may  be  referred  to  community  rather  than  locality. 
The  reference  of  Sir  Francis  Piggott  to  "a  modification  of 
Lord  Watson's  interpretation  of  the  law  of  domicil"  relates 
to  this  precise  point.  We  concur  in  the  result  of  their  con- 
clusions, but  not  in  the  method  of  reaching  it. 

Upon  both  reasons  and  authority  we  are  of  the  opinion 
that  the  domicil  of  the  decedent,  living  in  a  country  that 
granted  extraterritorial  privileges,  should  be  determined  by 
the  same  rules  of  law  that  apply  to  the  acquisition  of  dom- 
icil in  other  countries.  In  support  of  this  position  we 
refer  to  the  reasons  cogently  and  comprehensively  expressed 
in  Judge  Wilfley's  opinion.  In  the  language  of  Prof.  Hu- 
berich  the  result  here  reached,  it  is  submitted, 

"preserves  intact  the  theory  that  domicil  is  a  legal  relation  be- 
tween an  individual  and  a  particular  country,  and  involves  a  certain 
submission  to  the  laws  of  such  country  as  the  laws  of  the  territorial 
sovereign.  It  upholds  the  doctrine  that  each  state  is  supreme  over 
all  person?  and  things  within  the  territorial  boundaries.  It  does 
away  with  an  anomaly  in  the  law  of  domicil,  and  enables  the  courts 
to  recognize  the  legal  existence  of  a  domicil  where  the  facts  and 
intent  ordinarily  requisite   are  present."  ■" 

The  court  is  of  the  opinion  that  Henry  H.  Cunningham, 
the  decedent,  at  the  time  of  his  decease,  had  abandoned  his 
domicil  of  origin  in  Waldo  county,  Me.,  and  had  acquired  a 
domicil  of  choice  in  Shanghai,  China.  Therefore,  in  ac- 
cordance with  the  stipulations  in  the  report,  the  entry 
must  be: 

Appeal  sustained.     Decree  of  the  court  below  reversed. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Thomas  Jones. 

[Criminal  Cause,   No.   31;   filed   May   4,   1909.] 

SYLLABUS. 

(By  the  Editor.) 

1.  EVIDENCE:    CREDIBILITY.     Chinese  testimony  must  be  weighed  by 
the  same  rules  as  any  other. 


^"Law   Quarterly   Rev.,   XXIV,   444. 


UNITED  STATES  V.   JONES,   MAY   4,    1909.  155 

2.  Id.:  The  testimony  of  an  accused  must  be  considered  with  due  al- 

lowance foi'  his  interest. 

3.  Id.  :   Homicide.     Evidence  reviewed  and  found  sufficient  to  convict 

of  involuntary  manslaughter  but  not  of  murder. 

Arthur  Basset,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
W.  S.  Fleming,  Esq.,  for  the  defendant. 


Thayer,  J.: 

The  information  in  this  case  charges  that  one,  Thomas 
Jones,  a  citizen  of  the  United  States,  on  or  about  March 
20,  1909,  in  the  City  of  Chefoo,  China,  did  feloniously,  will- 
fully and  of  malice  aforethought,  make  an  assault  on  one 
Kung  Ch'ing  a  Chinese  subject;  that  he  did  then  and  there 
feloniously,  willfully  and  of  malice  aforethought  discharge 
a  pistol  at  the  said  Kung  Ch'ing,  thereby  inflicting  upon 
the  said  Kung  Ch'ing  a  mortal  wound,  from  the  effects  of 
which  the  said  Kung  Ch'ing  died  on  March  27,  1909,  and 
that  in  the  manner  and  form  aforesaid,  the  said  Thomas 
Jones  did  feloniously,  willfully  and  of  malice  aforethought 
Mil  and  murder  the  said  Kung  Ch'ing. 

The  crime  charged  is  the  common  law  crime  of  murder 
which  corresponds  to  the  statutory  crime  of  murder  in  the 
first  degree  as  defined  in  the  statutes  ^  of  the  United  States 
when  committed  in  a  place  over  which  the  national  govern- 
ment has  lawful  and  exclusive  jurisdiction. 

Preliminary  hearings  were  had  before  the  American  Vice 
Consul  at  Chefoo  and  the  defendant  was  by  that  officer 
committed  to  this  Court  for  trial  on  said  charge.  Sub- 
sequently on  April  14,  1909,  the  District  Attorney  filed  the 
information  in  substance  as  above  recited.  Upon  arraign- 
ment the  defendant  plead  "Not  guilty." 

The  corpus  delicti  was  fully  established  by  the  attending 
physician  who  saw  the  wounded  man  very  shortly  after 
he  received  the  shot,  removed  the  bullet  at  once  without 
difficulty,  and  attended  the  patient  until  the  time  of  his 
death.  He  also  performed  a  post  mortem  examination  on 
the  afternoon  of  the  death,  which  occurred  at  four  o'clock 
in  the  morning  of  March  27. 

'  Federal  Penal  Code,  sec.  273-275.     Ed. 


156  I  EXTRATERRITORIAL  CASES. 

There  is  no  question  that  the  wound  was  inflicted  by  a 
gun  shot,  and  that  said  wound  was  the  cause  of  death. 
Analysis  of  the  testimony  discloses  only  a  few  points  of 
serious  conflict,  reference  to  which  will  be  made  later.  The 
facts  established  by  the  testimony  without  denial  or  dispute 
are  that  at  the  time  he  received  the  wound  the  deceased 
w'as  in  a  sampan  near  what  is  known  as  the  "jetty,"  the 
ordinary  landing  place  in  Chefoo  of  passengers  going  to 
or  from  ships  in  the  harbor.  The  exact  position  of  the 
sampan  at  the  time  the  wound  was  received  is  in  dispute 
and  the  testimony  relating  thereto  will  be  discussed  later. 

Undisputed  testimony  shows  that  at  the  time  Kung  Ch'ing 
received  the  wound  the  sampan  was  occupied  by  himself, 
one  Hsuen,  the  first  Chinese  witness  for  the  prosecution, 
and  one  Chinese  passenger,  whose  name  does  not  appear; 
that  upon  receiving  the  wound  the  victim  made  an  outcry 
and  collapsed  in  the  sampa^i,  and  that  the  boat  was  brought 
quickly  to  the  jetty  and  the  wounded  man  was  taken  out 
and  put  in  a  ricsha  and  conveyed  thence  to  a  point  near  the 
foreign  club;  that  his  attendants  were  seeking  the  Amer- 
ican Consul,  who  was  met  in  the  street  near  that  point; 
that  the  reason  for  going  to  the  American  Consul  was  that 
they,  the  sampanmen  who  helped  the  wounded  man  ashore, 
understood,  or  were  informed,  that  the  shot  which  had  in- 
flicted the  wound  had  been  fired  by  an  American  citizen, 
and  that  the  American  Consul,  as  was  his  duty,  immediately 
took  cognizance  of  the  case. 

It  is  also  undisputed  that  the  defendant,  Thomas  Jones, 
was  in  the  late  afternoon  of  the  day  referred  to,  viz :  March 
20,  1909,  on  said  jetty  and  near  one  of  the  two  landing 
places  connected  therewith;  that  he  had  in  his  possession 
a  small  revolver,  of  the  pattern  known  as  a  "Baby  Brown- 
ing," that  the  same  was  loaded  with  one  or  more  charges 
and  that  while  the  said  Jones  was  on  said  jetty,  near  one 
of  the  landing  places,  and  while  said  revolver  was  in  the 
hand  or  hands  of  the  said  Jones,  one  shot  was  discharged 
therefrom. 

The  attending  physician  who  removed  the  bullet  from 
the  deceased  testified  that  it  was  a  "small  bullet"  and  he 
called  it  a   "Baby   Browning."     In  giving  this  testimony 


UNITED  STATES  V.   JONES,   MAY   4,    1909.  157 

he  quoted  a  remark  by  others  to  whom  he  exhibited  the 
bullet,  which  was  quite  obviously  inadmissible  testimony 
at  that  time,  but  subsequent  testimony  of  the  same  witness 
showed  that  he  was  quite  familiar  with  fire  arms,  and 
other  testimony  makes  it  practically  impossible  to  doubt 
that  the  bullet  discharged  from  the  revolver  held  by  Jones 
was  the  identical  one  which  inflicted  the  wound. 

While  the  defendant  testifies  to  facts  and  circumstances 
which,  if  true,  would  relieve  him  from  a  verdict  of  wilful 
murder,  he  does  not  claim  or  assert,  nor  does  his  counsel 
claim  or  assert  for  him,  that  there  is  the  slightest  doubt 
that  the  said  wound  was  caused  by  the  identical  bullet 
discharged  on  that  day  and  place  from  the  defendant's  re- 
volver. There  is  no  proof  that  any  other  shot  was  fired  in 
that  vicinity  on  or  about  that  time,  and  the  identity  of 
the  bullet  effecting  the  wounding  of  Kung  Ch'ing  with  that 
discharged  from  defendant's  gun  must  be  regarded  as  es- 
tablished beyond  a  reasonable  doubt. 

The  next  material  fact  respecting  which  there  is  some 
slight,  tho,  in  the  opinion  of  the  Court,  no  material,  con- 
flicting testimony,  is  the  time  or  exact  hour  when  the  shot 
was  fired.  Dr.  Gulowsen,  in  answer  to  question  as  to  what 
was  the  time  when  he  first  saw  the  wounded  man,  said  it 
was  about  four  o'clock  but  later  said  "it  might  have  been 
as  late  as  five  o'clock"  altho  he  did  not  particularly  re- 
member the  hour.  The  several  Chinese  witnesses  for  the 
prosecution  do  not  fix  with  exactness  the  time  when  the 
shot  was  fired  but  say  that  it  was  about  four  o'clock.  The 
defendant  testified  in  detail  as  to  his  movements  during  the 
afternoon  of  that  day  and  produced  corroborating  tes- 
timony tending  to  establish  the  fact  that  it  was  after  five 
o'clock  when  he  reached  the  jetty.  In  fact  some  of  his 
corroborating  witnesses  testified  respecting  defendant's 
movements  in  such  way  as  would  necessarily  have  brought 
the  defendant  to  the  jetty  at  a  much  later  time  than  that 
at  which  the  defendant  himself  admits  he  reached  the  jetty 
on  the  afternoon  in  question.  But  this  conflict  of  testimony 
is  neither  serious  nor  material.  The  time  testified  to  by 
the  witnesses  for  the  prosecution  is  not  fixed  with  any  pre- 
cision as  to  the  exact  moment  when  the  events  occurred 


158  I  EXTRATERRITORIAL  CASES. 

and  the  question  of  time  has  no  material  relevancy  with- 
reference  either  to  main  questions  of  fact  or  to  the  cred- 
ibility of  any  of  the  witnesses  on  either  side  unless  it  be 
to  the  discredit  of  defendant's  witnesses  who  outstripped 
his  own  memory. 

The  next  question  relates  to  the  location  of  the  sampan 
in  which  the  deceased  was  standing  at  the  time  when  he 
received  the  mortal  wound.  We  have  on  the  one  side  the 
testimony  of  the  Chinese  witnesses  who  were  either  in  the 
boat  when  Kung  Ch'ing  was  wounded  or  on  the  jetty  when 
the  shot  was  fired  or  in  the  sampan  in  which  the  defendant 
afterward  embarked.  The  Court  visited  the  jetty  upon  the 
request  of  the  District  Attorney,  attended  by  the  latter  and 
the  defendant's  attorney,  and  carefully  observed  the  two 
landings  and  their  relation  to  each  other  and  the  immediate 
surroundings  of  the  jetty.  The  two  landings  are  approx- 
imately one  hundred  feet  apart,  measured  by  the  eye.  One 
of  them  is  at  the  north  and  one  at  the  south.  Between  them 
the  jetty  wall  curves  inward  toward  the  shore.  The  tes- 
timony of  the  first  witness,  Shen  Chi,  is  that,  at  the  time 
the  shot  was  received,  the  sampan  in  which  Kung  Ch'ing 
was  standing,  had  already  left  from  the  south  landing  and 
had  come  forward  on  its  way  out  and  was  a  little  south  of 
the  north  landing  and  away  from  the  jetty  a  distance  of, 
as  the  witness  expressed  it,  about  the  width  of  the  room 
in  which  the  Court  was  sitting,  which  cannot  be  far  from 
15  feet,  and  was  about  parallel  to  the  jetty.  This  witness 
was  in  the  sampan  with  Kung  Ch'ing  at  the  time.  The 
second  Chinese  witness,  Li  Pao  Jen,  testifies  that  he  was 
standing  on  the  jetty  two  or  three  steps  from  the  north 
landing  when  the  shot  was  fired,  that,  the  sam/pan  in  which 
Kung  Ch'ing  stood  was  then  a  little  to  the  south  of  the 
north  landing,  and,  on  cross-examination,  that  the  sampan 
had  pushed  off  from  shore,  not  far  from  the  jetty  at  the 
time  of  the  shot,  a  distance  of  two  or  three  paces.  The 
third  Chinese  witness,  Li  Ch'iu,  was  not  questioned  directly 
on  this  point,  either  on  his  direct  or  cross-examination.  He 
testifies  that  he  was  standing  on  the  jetty  about  five  or  six 
paces  from  the  foreigner  at  the  time  the  shot  was  fired, 
and  the  sampan  was  so  near  him  that  he  observed  the 


UNITED  STATES  V.   JONES,   MAY   4,    19  09.  159 

collapse  of  Kung  Ch'ing  when  the  latter  received  the  wound. 
The  fourth  Chinese  witness,  Hsiao  Pao  Shan,  was  not  in  a 
position  to  see  the  Kung  Ch'ing  sampan  at  the  time  the 
gun  was  fired,  but  he  saw  it  near  the  jetty  immediately 
afterwards. 

The  fifth  Chinese  witness,  Wang  Sai  Yuan,  was  the  sam- 
panman  in  whose  boat  the  defendant  was  taken  to  the 
lightship.  He  testifies  that  he  was  close  to  the  north  land- 
ing when  the  shot  was  fired  and  that  Kung  Ch'ing's  sampan 
was,  at  that  time,  very  near  his  boat  and  a  little  to  the 
southward. 

Defendant  testifies  that  he  did  not  see  any  sampan  less 
than  twenty  or  thirty  paces  from  the  jetty  except  the  one 
in  which  he  subsequently  embarked  and  that  none  were  near 
to  the  jetty  during  the  time  of  his  arrival  there  and  his 
embarkation  except  that  which  took  him  out  to  the  light- 
ship a  few  minutes  later.  In  other  words,  on  this  point, 
he  flatly  contradicts  the  testimony  given  by  the  Chinese 
witnesses,  who  also  testify  respecting  the  firing  of  the  shot, 
the  circumstances  under  which  it  was  fired,  the  position  of 
defendant's  arm  when  the  gun  was  discharged  and  all  the 
attending  circumstances.  This  testimony  is  all  very  direct 
and  tends  to  establish  that  the  defendant,  after  reaching 
the  jetty,  beckoned  to  the  sampan  in  which  were  Kung 
Ch'ing  and  Shen  Chi  and  one  Chinese  passenger,  who  had 
just  pushed  off  from  the  south  landing,  and  were  then  a 
little  south  of  the  north  landing.  This  sampan  paid  no  at- 
tention to  defendant's  signal.  The  defendant  then  beckoned 
to  a  second  sampan  nearby,  which  also  ignored  his  signal. 
He  then  drew  from  his  pocket  a  pistol  or  gun  and  fired  one 
shot,  with  arm  extended,  in  the  direction  of  Kung  Ch'ing's 
sampan,  and  immediately  returned  the  pistol  to  his  pocket. 

The  first  Chinese  witness,  Shen  Chi,  was  in  the  boat 
with  Kung  Ch'ing.  His  back  was  toward  the  defendant 
when  the  shot  was  fired,  but  he  heard  the  shot  and  turned 
and  saw  the  defendant  returning  the  gun  to  his  pocket, 
a  small  part  showing  in  his  hand.  The  second  Chinese 
witness,  Li  Pao  Jen,  was  standing  on  the  jetty,  near  the 
north  landing,  two  or  three  steps  from  the  defendant  whorii, 
he  testifies,  he  saw  beckon  to  the  two  sampaiis  in  succession ; 


1QQ  I  EXTRATERRITORIAL  CASES. 

that  he  was  angry  and  swore,  or  was  in  a  fighting  attitude, 
and  that  he  put  his  right  hand  in  his  pocket,  pulled  his 
gun  out,  pointed  and  fired.  The  third  Chinese  witness,  Li 
Ch'iu,  was  also  on  the  jetty  standing  a  few  steps  distant 
from  the  defendant  when  the  shot  was  fired.  He  also  tes- 
tifies to  the  two  signals  made  by  the  defendant  to  sampans, 
which  were  ignored,  to  his  apparent  anger ;  to  his  drawing 
the  gun  from  his  pocket  with  his  right  hand,  pointing  it 
toward  the  sampan  of  Kung  Ch'ing;  to  hearing  the  loud 
report,  and  to  the  return  of  the  gun  by  the  defendant  to  his 
pocket.  The  fourth  Chinese  witness,  Hsiao  Pao  Shan,  was 
also  on  the  jetty  at  the  time  when  the  shot  was  fired,  about 
twenty  paces  back  of  the  defendant,  heard  the  shot  but  did 
not  see  the  gun,  heard  the  shout  that  "this  man  had  been 
hurt"  and  went  to  the  edge  of  the  jetty.  While  the  wounded 
man  was  being  carried  up  at  the  south  landing  the  defend- 
ant, he  says,  entered  a  sampan  at  the  north  landing  and  left. 
The  fifth  Chinese  witness,  Wang  Sai  Yuan,  was  the  sampan- 
man  who  took  defendant  off  to  the  lightship  after  the  gun 
was  fired.  He  testified  to  hearing  the  shot  and  to  seeing  the 
defendant's  arm  extended.  All  of  these  witnesses  also  tes- 
tified to  seeing  the  wounded  man,  either  immediately  after 
he  was  shot  or  shortly  after,  when  he  was  helped  out  of 
the  sampa7i  at  the  south  landing. 

The  defendant  testifies  that  he  went  to  the  jetty  some- 
what after  five  o'clock  of  the  afternoon  of  the  shooting 
for  the  purpose  of  making  a  visit  to  the  Neuchwang  Light- 
ship ;  that  he  had  taken  a  walk  earlier  in  the  afternoon  and, 
before  leaving  for  the  walk,  had  put  the  "Baby  Browning" 
revolver  in  his  right  vest  pocket  as  a  protection  against 
vicious  dogs ;  that  he  forgot  to  remove  the  pistol  from  his 
pocket  when  he  returned  to  his  bar  and,  on  finding  it  in 
his  pocket  shortly  after  getting  to  the  jetty,  took  the  weapon 
out  for  the  purpose  of  removing  from  it  the  clip  which 
contained  the  six  or  less  bullets  with  which  it  was  charged ; 
that  he  did  so  out  of  abundant  caution  and  in  accordance 
with  his  fixed  habit  of  always  unloading  any  gun  he  had 
before  going  into  any  boat  or  sampan;  that  while  engaged 
in  removing  said  clip  one  charge  exploded — for  what  reason 


UNITED  STATES  V.   JONES,   MAY   4,    1909.  161 

he  is  unable  to  explain ;  that  there  were  no  sampayis  in  the 
line  of  the  shot;  that  he  saw  the  shot  strike  the  waters 
about  sixty  or  ninety  feet  from  the  jetty.  He  denies  that 
he  had  any  difficulty  in  securing  a  sampan  or  that  he 
beckoned  to  any  which  failed  to  respond  to  his  signal. 
He  testifies  that  he  saw  no  evidence  that  the  shot  had 
taken  effect;  that  the  first  sampan  to  which  he  beckoned 
came  promptly  to  the  landing  and  that  he  left  the  latter 
in  entire  ignorance  that  anybody  had  been  wounded. 

The  theory  of  the  defense  is  that,  at  the  time  when  the 
gun  was  discharged,  the  sampan  in  which  Kung  Ch'ing  was 
standing  was  not  located  near  the  jetty  at  the  point  testi- 
fied by  the  several  Chinese  witnesses  but  at  some  place 
somewhat  more  than  sixty  or  ninety  feet  away  and  to  the 
left  of  the  line  of  the  shot  but  that  the  ball  must  have 
ricocheted  to  the  left  from  the  point  where  it  struck  the 
water  and  thus  reached  and  wounded  Kung  Ch'ing. 

If  this  testimony  of  the  defendant  is  to  be  accepted,  it 
follows  unavoidably  that  the  testimony  of  the  five  Chinese 
witnesses  must  be  rejected  as  wholly  and  wilfully  false. 
In  fact  counsel  for  the  defendant  contends  that  it  is  utterly 
unworthy  of  belief.  His  conclusion  rests  mainly  upon 
three  propositions:  (1)  That  the  harmony  of  the  state- 
ments made  by  five  Chinese  witnesses  must  create  a  just 
suspicion  that  they  have  been  skilfully  prepared  and  drilled 
so  as  to  be  able  to  tell  the  same  story;  (2)  That  the  Chi- 
nese mind  and  point  of  view  is  such  that  in  the  case  of  every 
Chinese  witness  a  Court  is  bound  to  start  with  a  pre- 
sumption that  the  witness  will  not  tell  the  truth;  (3)  That 
this  is  a  racial  characteristic  so  pronounced  and  so  well 
established  by  authorities  cited  by  counsel  that  this  Court 
is  bound  to  take  judicial  notice  of  it  and  to  be  guided  thereby 
in  determining  the  weight  of  evidence. 

These  propositions  constitute  most  remarkable  grounds 
upon  which  to  appeal  to  an  American  court  to  adjudicate 
a  cause  under  our  system  of  law  and  procedure,  the  product 
of  centuries  of  slow  growth.  To  yield  to  counsel's  conten- 
tion would  compel  such  a  departure  from  fundamental  rules 
of  evidence  as  would   shake  the  very  foundation  of  our 

14008  O.  W. 11 


1^2  I  EXTRATERRITORIAL  CASES. 

system.  The  Court  must  treat  the  testimony  of  these  sev- 
eral witnesses  with  exactly  the  same  deference  to  rules 
of  evidence  as  applies  to  witnesses  of  our  own  nationality, 
applying  the  tests  of  credibility  which  are  familiar  and  well 
established.  While  the  presiding  Judge  of  this  court  is  in 
no  position  to  deny  differences  in  race  characteristics,  he 
has  not  reached  the  point  where  he  feels  justified  in  making 
any  classification  on  the  lines  suggested  by  counsel  and  he 
knows  no  law  upon  which  he  could  rest  such  a  classification 
if  he  were  inclined  to  make  it.  The  Court  easily  recognizes 
that  these  several  Chinese  witnesses  belong  to  the  lowest 
class  of  Chinese  laborers.  They  are  coolies  of  small  in- 
telligence and  it  is  assumed  that  they  may  have  feelings 
and  prejudices  and  bias  much  the  same  as  must  be  recog- 
nized in  the  ignorant  and  uneducated  man  in  every  country. 
It  is  quite  possible  that  their  points  of  view  and  their  basis 
of  reasoning  diff'er  from  those  which  characterize  somewhat 
similar  classes  in  other  and  especially  western  nations.  But 
the  Court  will  not  accept  the  theory  that  they  are  incapable 
of  telling  the  truth.  In  weighing  their  testimony  the  usual 
rules  of  evidence  will  be  applied.  The  Court  has  little  diflfi- 
culty  in  accepting  the  testimony  of  these  several  Chinese 
witnesses  as  substantially  truthful  and  presenting  the  ma- 
terial facts  as  they  saw  them  or  as  they  thought  they  saw 
them. 

But  it  does  not  follow  that  they  may  not  have  been  mis- 
taken as  to  some  of  the  details  which  they  recite.  The 
incident  must  have  produced  great  excitement  and  disturb- 
ance in  the  minds  of  each  of  these  witnesses  and  it  is  not 
at  all  unlikely  that  in  the  few  seconds  involved  in  the 
handling  of  the  weapon  and  in  the  firing  of  the  shot,  these 
witnesses  may  have  been  mistaken  as  to  what  were  the 
exact  movements  of  the  defendant  during  this  brief  period 
of  time.  It  cannot  be  reasonably  doubted  that  some  of  them 
saw  the  weapon  in  his  hand.  The  very  nature  of  their 
testimony  on  this  point  forbids  any  other  conclusion.  For 
example  they  described  the  gun  as  a  "very  small  gun." 
Those  who  saw  it,  or  claim  to  have  seen  it,  saw  but  a  very 
short  piece  of  the  barrel  extending  beyond  the  closed  hand 


UNITED  STATES  V.  JONES,  MAY  4,  190  9.  163 

of  the  defendant.  This  corresponds  exactly  with  the  very 
peculiar  and  unusual  weapon  actually  in  the  hand  of  the 
defendant  at  that  time.  It  was  so  short  as  to  be  easily 
inserted  in  the  vest  pocket.  It  does  not  appear  possible  that 
these  Chinese  witnesses,  if  they  had  been  fabricating  this 
part  of  the  story,  could  have  selected  and  described  this 
particular  weapon.  The  pistol  is  of  an  unusual  type — so 
much  so  that  the  defendant  himself,  tho  specially  familiar 
with  all  forms  of  weapons,  both  as  a  sportsman  and  by 
reason  of  his  service  in  the  Navy,  claims  that  he  had  little 
knowledge  of  its  practical  working.  It  would  be  unreason- 
able to  assume  that  these  witnesses  had  any  familiarity 
with  such  a  weapon.  It  would  be  almost,  if  not  quite, 
equally  unreasonable  to  assume  that  any  of  the  Chinese  peo- 
ple or  officers  here  in  Chef  oo,  who  might  be  disposed  to  coach 
these  witnesses  on  such  a  matter  of  details,  would  have  se- 
lected such  a  weapon  for  description.  It  seems  practically 
certain  that  in  such  case  the  usual  and  common  type  of  gun 
would  have  been  selected,  and  one  with  a  much  longer  barrel, 
which  is  easily  observed  by  the  eye  and  is  conspicuous  by 
the  length  of  its  barrel. 

The  acceptance  of  the  testimony  of  the  Chinese  witnesses 
on  this  point  and  on  the  point  of  location  of  the  sampans 
at  the  time  when  the  shot  was  fired,  and  of  that  part  of  their 
testimony  which  relates  to  the  general  incidents  connected 
with  the  wounding  of  the  victim  and  his  removal  from  the 
boat,  involves  unavoidably  the  rejection  of  the  defendant's 
statement  as  being  wilfully  untruthful  in  its  essential 
features.  In  reaching  such  a  conclusion  the  Court  not 
only  has  a  clear  and  unmistakable  preponderance  of  tes- 
timony but  must  take  cognizance  of  the  strong  self  interest 
which  would  influence,  if  not  dictate,  the  defendant's  tes- 
timony. In  addition  to  this  there  are  features  of  the  de- 
fendant's testimony  which  are  so  unreasonable,  and  so  out 
of  harmony  with  usual  events,  as  to  satisfy  the  Court  that 
they  cannot  be  a  part  of  a  truthful  account  of  this  incident. 
He  testifies,  e.  g.,  that  one  of  the  charges  accidentally  ex- 
ploded while  he  was  attempting  to  remove  the  clip.  It  is 
not  at  all  unreasonable  that  such  an  accidental  explosion 


164  I  EXTRATERRITORIAL  CASES. 

could  have  occurred,  tho  the  possibilities  that  it  would  occur 
in  the  hands  of  a  man  familiar  with  handling  weapons,  such 
as  the  defendant  was,  should  have  been  small.  But  the 
defendant  is  not  content  with  making  that  simple  statement. 
He  admits  great  surprise  at  the  sudden  explosion.  Exercis- 
ing the  care  to  which  he  testifies  his  surprise  must  have 
been  all  the  more  pronounced.  Yet  he  testifies  that  he  was 
so  calm  and  observing  and  so  quick  of  eye  that  he  saw 
the  shot  from  this  small  gun  strike  the  water  sixty  or  ninety 
feet  away  from  where  he  stood.  Is  this  a  statement  such  as 
a  reasonable  mind  can  accept  as  either  possibly  or  probably 
true?  All  the  testimony  shows  that  this  gun  is  a  gun  of 
great  power.  The  velocity  of  the  bullet  immediately  after 
discharge  was  very  great.  The  merest  fragment  of  a 
second  in  time  only  could  have  been  consumed  after  ig- 
nition of  the  charge  in  the  speeding  of  this  bullet  from  the 
gun  to  a  point  sixty  or  ninety  feet  distant.  It  seems  prob- 
able to  the  Court  that  before  the  sound  of  the  explosion 
was  registered  in  the  consciousness  of  the  defendant  this 
bullet  had  largely  sped  its  course. 

Another  striking  example  of  defendant's  lack  of  sincerity 
and  truthfulness  occurs  in  his  cross-examination : 

Q.  Now,  in  what  direction  from  the  jetty  did  the  ball  strike  the 
water  as  you  saw  it? 

A.  It  went  in  front  of  me.  I  was  in  the  corner  of  the  steps  and 
there  was  no  sampaji  there.     They  were  off  to  the  left. 

Q.  How  far  from  you  did  this  ball  hit  the  water? 

A.  I  would  say  twenty  or  thirty  paces.     I  did  not  measure  it. 

Q.  Hov/  far  from  you  were  the  sampans  anchored? 

A.  I  would  say  about  fifteen  or  twenty  paces. 

Q.  So  the  bullet  from  the  gun  you  fired  struck  the  water  at  a 
greater  distance  from  you  than  the  sampans  were  anchored  from  you? 

A.  Yes,   sir,   and   in   a   different  direction. 

Here  the  defendant  permits  himself  to  place  the  point  of 
first  contact  of  the  bullet  with  the  water  not  only  out  of  the 
line  of  direction  of  the  sampans  but  beyond  their  location. 
To  enable  that  bullet  to  reach  and  wound  the  victim  Kung 
Ch'ing,  locating  the  sampan  and  the  first  point  of  contact  of 
the  bullet  with  the  water  where  the  defendant  places  them, 
would  necessitate  a  ricochet  at  an  angle  from  the  point  of 


UNITED  STATES  V.   JONES,   MAY   4,    1909.  165 

impact  of  considerably  more  than  ninety  degrees.  The 
Court  knows  of  no  authority  which  would  allow  it  to  accept 
such  a  variation  of  the  bullet  as  possible.  Yet  that  identical 
bullet  reached  and  killed  Kung  Ch'ing.  This  fragment  of 
testimony  indicates  to  the  mind  of  the  Court  that  the  de- 
fendant was  ready  to  testify  freely  and  recklessly  in  the 
line  of  what  he  supposed  to  be  his  best  defense  but  was 
unable  to  perceive  the  logical  difficulties  into  which  this 
testimony  would  precipitate  him.  The  Court  deems  it  un- 
necessary to  go  farther  in  a  detailed  analysis  of  the  tes- 
timony. The  above  examples  are  not  the  only  ones  which 
operate  on  the  mind  of  the  Court,  but  they  are  deemed  suf- 
ficient. 

The  Court  now  passes  on  to  the  grave  duty  of  determining 
the  character  of  the  offense  committed  by  the  defendant  and 
a  consideration  of  the  evidence  which,  in  the  judgment  and 
conscience  of  the  Court,  must  determine  that  question.  The 
Court  is  unaided  by  a  jury.  It  has  imposed  upon  it  the 
duty  of  giving  to  the  defendant  the  benefit  of  all  reasonable 
doubts  and  the  presumption  of  innocence  until  the  evidence 
establishes  his  guilt  beyond  a  reasonable  doubt.  As  al- 
ready stated  nothing  was  observed  in  the  bearing  of  the 
Chinese  witnesses  which  inspired  any  doubt  of  their  truth- 
fulness or  of  their  desire  to  describe  the  events  as  they  oc- 
curred. However,  the  Court  recognizes  that  they  may  have 
been  mistaken  in  some  details  and  especially  as  to  what 
were  the  exact  movements  and  attitude  of  the  defendant 
during  that  very  brief  period  of  time  while  the  gun  was  in 
his  hands.  Any  witness,  however  intelligent  and  honest,  in 
the  excitement  of  such  a  moment,  conceives  hurried  impres- 
sions which  are  only  too  likely,  in  common  experience,  to  be 
confirmed  and  turned  into  honest  beliefs  by  succeeding 
events  which  appear  to  be  consistent  with  previous  impres- 
sions hurriedly  formed.  The  guilt  of  the  defendant  in  this 
case,  or  the  degree  of  his  guilt,  turns,  in  the  opinion  of  the 
Court,  upon  one  simple  question  of  fact,  to  be  deduced  from 
the  evidence  in  the  record:  Was  the  defendant's  arm  ex- 
tended at  the  time  when  the  shot  was  discharged?  The 
most  of  these  Chinese  witnesses  testify  that  it  was  so  ex- 


166  I  EXTRATERRITORIAL  CASES. 

tended.  If  this  testimony  is  to  be  accepted  as  representing 
the  actual  position  of  the  defendant's  arm  at  that  time,  the 
fact  thus  established  would  disclose  purpose  and  intent  and 
possibly  compel  the  Court  to  adopt  the  common  law  rule  of 
implied  malice  to  w^hich  the  District  Attorney  has  directed 
attention.  The  defendant  claims  that  the  shot  was  acci- 
dentally fired  while  he  was  attempting  to  remove  the  clip 
from  the  gun.  Assume  that  it  did  so  occur,  What  would 
have  been  the  movements  of  the  defendant?  While  he  was 
actually  engaged  in  removing  the  clip  it  seems  quite  certain 
that  both  hands  would  have  been  engaged.  But  who  shall 
say  what  movement  of  the  arm  or  arms  might  have  been 
made  by  a  man  in  whose  hands,  while  engaged  in  unloading 
it,  a  chai'ge  suddenly  explodes?  Might  not  his  arm  extend 
itself  with  nervous  quickness  in  any  direction?  And  would 
it  not  have  been  very  easy  for  an  observer,  whose  attention 
was  attracted  by  the  explosion,  to  interpret  it  as  preceding 
rather  than  following  the  shot.  Is  it  not  possible,  even  for 
an  observer  who  was  looking  at  a  man,  engaged  as  the 
defendant  claims  to  have  been  in  removing  this  clip,  and 
the  observer  not  knowing  what  the  defendant  was  doing, 
to  have  made  a  similar  error  in  observation?  These  in- 
quiries present  to  the  mind  and  judgment  of  the  Court  the 
most  vital  question  in  this  case.  Giving  to  the  defendant 
the  benefits  to  which  he  is  entitled  under  the  law,  the 
Court  is  not  satisfied,  beyond  a  reasonable  doubt,  that  the 
defendant's  arm  was  extended  at  the  time  when  the  gun 
was  discharged.  In  reaching  this  conclusion  the  Court  has 
not  overlooked  the  evidence  in  the  case  which  tends  to  show 
that  the  defendant  was  angry.  No  witness  heard  him  speak. 
The  utmost  shown  by  the  evidence  was  an  appearance  of 
anger  which  was  attributed  to  the  failure  of  two  sampans  to 
respond  to  the  defendant's  signal.  The  provocation,  if  as 
alleged,  was  certainly  slight  and  not  ordinarily  enough  to 
inspire  murderous  intent.  It  is  these  feelings  of  doubt,  and 
this  sense  of  lack  of  reasonably  conclusive  proof  of  intent, 
which  control  the  judgment  of  the  Court. 

But  it  has  no  difficulty  in  reaching  a  conclusion  that  the 
explosion  of  the  charge  in  the  hands  of  the  defendant,  which 
wounded  and  caused  the  death  of  Kung  Ch'ing,  was  due 


EDWARDS  V.  GRAVES  ET  AL.,  OCT.  11,  1909,  167 

to  the  criminal  negligence  of  the  defendant.  The  weapon 
was  recognized  by  the  defendant  as  a  dangerous  one.  By 
his  own  statement  he  was  familiar  with  fire-arms  and  ac- 
customed to  use  them.  The  gun  was  his  own  and  if,  as  he 
alleges,  he  had  not  fully  acquainted  himself  with  its  action, 
that  cannot  excuse  him.  He  attempted  to  unload  this  dan- 
gerous gun  on  the  public  jetty,  corresponding  to  a'  public 
street,  and  exercised  so  little  care  that  a  shot  was  exploded, 
altho  the  weapon  was  specially  designed  against  possible 
accidental  discharge  and  was  provided  with  devices  in- 
tended to  make  its  accidental  discharge  practically  im- 
possible. 

It  is  the  judgment  of  the  Court  that  the  accused  is  guilty 
of  involuntary  manslaughter  and  the  Court  sentences  the 
said  Thomas  Jones,  for  the  commission  of  the  said  crime, 
to  imprisonment  for  the  period  of  three  years  in  the  jail 
of  the  American  consulate  at  Shanghai  from  May  4,  1909, 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Edward  Edwards,  Plaintiff,  v.  R.  H,  Graves  et  al,. 
Defendants. 

[Civil  action  No.  72;  filed  October  11,  1909,] 

SYLLABUS. 
(By  the  Editor.) 

PLEADING:  CAUSE  OF  Action:  Tort  or  Contract.  A  petition  aj- 
leging  breaches  of  a  lease  and  praying  damages  "by  reason  of 
the  unlawful  acts  of  the  defendants  as  above  set  forth"  sounds 
in  contract. 

Arthur  Basset,  Esq.,  for  plaintiff. 

W.  S.  Fleming,  Esq.,  for  defendants. 

Thayer,  J.: 

The  plaintiff  sets  forth  a  lease,  a  copy  of  which  is  annexed 
to  the  petition  and  made  a  part  thereof.  He  alleges 
breaches  by  the  defendant  lessors  in  two  respects:  (1)  an 
eviction  of  the  plaintiff  from  the  leased  property  before  the 


168  I  EXTRATERRITORIAL  CASES. 

expiration  of  the  term  of  the  lease  and  (2)  a  conversion  to 
their  own  use  of  a  certain  sum  of  money  which,  under 
the  terms  of  the  lease,  the  plaintiff  had  deposited  with  the 
defendant  lessors  "as  security  for  the  execution  of  this 
lease."  Plaintiff  alleges  damages  in  a  specified  amount  "by 
reason  of  the  unlawful  acts  of  the  defendants  as  above  set 
forth  and  alleged"  and  prays  judgment  therefor. 

The  defendants  interpose  a  plea  in  bar,  resting  upon  the 
provision  that 

"Civil  actions  based  on  written  promise,  contract,  or  instrument  must 
be  commenced  within  six  years  after  the  cause  of  action  accrues; 
others  within   two."  * 

It  is  contended  that  the  action,  in  the  form  as  brought,  is  an 
action  in  tort  and  not  based  on  "a  written  promise,  contract, 
or  instrument"  and  that  it  must  be  classified  as  an  action 
in  tort  which  could  only  be  brought  within  two  years  after 
the  cause  of  action  had  accrued.  More  than  four  years 
have  elapsed  since  the  alleged  breaches  occurred. 

It  does  not  appear  that  any  criticism  can  be  justly  visited 
on  the  defendants  for  submitting  this  plea  in  bar  as  it  is 
obvious  that  the  plaintiff  has  not  been  very  prompt  in 
asserting  his  claims  and  seeking  a  remedy.  However,  the 
Court  finds  little  difficulty  in  classifying  the  action,  as 
"on  the  contract"  and  not  "in  tort."  The  plaintiff, 
in  his  petition  (paragraph  12),  alleges  that  he  has  been 
damaged  in  the  sum  of  $13,000  by  reason  of  the 
"unlawful  acts  of  the  defendants."  That  phrase  is  il- 
luminated and  qualified  by  the  further  words  "as  above 
set  forth  and  alleged."  It  is  quite  possible  for  the  Court 
to  construe  this  whole  phrase  as  equivalent  to  "by  reason  of 
the  breaches  of  said  contract  as  above  set  forth  and  alleged, 
the  plaintiff  has  been  damaged,"  etc.  If  the  paragraph 
had  been  so  phrased  it  seems  to  the  Court  that  there  could 
have  been  no  doubt  as  to  the  proper  classification  of  the 
action  as  one  on  the  contract.  Such  a  construction  of  the 
words  actually  used  appears  reasonable. 

The  plea  in  bar  is  overruled  and  five  days  are  allowed 
within  which  defendants  may  file  answer  to  the  petition. 

*  Consular  Court  Regulations,  sec.  83". 


UNITED    STATES    V.    ENGELBRACHT,    OCT.    25,    1909.     169 
IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Charles  A.  Engelbraght. 

[Criminal  cause  No.  33;  filed  October  25,  1909.] 

SYLLABUS. 
(By  the  Editor.) 

1.  LEGISLATION:   PROCEDURE:  The  CONSULAR  CouRT  Regulations  of 

1864,  and  later,  still  govern  the  procedure  of  American  Courts 
in  China  except  so  far  as  the  Judge  of  this  Court  has  exercised 
his  statutory  "authority  *  *  *  to  modify  and  supplement" 
them. 

2.  Id.  :   Id.  :   Such  Regulations  prevail  even  over  inconsistent  acts  of 

Congress  not  expressly  relating  to  this  jurisdiction. 

3.  Id.  :  Id.  :  The  Limitation  of  Criminal  Proceedings  prescribed  by 

sec.  82  of  said  Regulations,  and  not  the  shorter  one  of  Rev. 
Stats,  sec.  1044,  applies  here. 

4.  Id. :    Exegesis:    The  maxim  Expr-essio  unius  est  exclusio  alterius, 

applied. 

Arthur  Bassett,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
F.  M.  Brooks,  Esq.,  contra. 

Thayer,  J.  : 

This  is  a  criminal  proceeding  upon  information  filed  by 
the  District  Attorney,  which  charges  that  on  or  about 
June  2,  1906,  in  Shanghai,  China,  the  accused,  at  that  time 
Marshal  of  the  Consular  Court  for  the  District  of  Shanghai, 
embezzled  certain  funds  which  had  been  paid  into  said 
Court  and  which  came  into  his  hands  as  Marshal. 

The  accused  has  filed  a  plea  in  bar,  alleging  that,  inasmuch 
as  the  action  was  not  instituted  within  three  years  after 
the  offence  charged  was  alleged  to  have  been  committed, 
prosecution  therefor  is  barred  by  the  provisions  of  Sec. 
1044  of  the  Revised  Statutes  of  the  United  States,  which 
reads : 

"No  person  shall  be  prosecuted,  tried,  or  punished  for  any  offence, 
not  capital,  except  as  provided  in  section  1046,  unless  the  indictment 
is  found,  or  the  information  is  instituted,  within  three  years  next 
after  such  offence  shall  have  been  committed.  But  this  act  shall 
not  have  effect  to  authorize  the  prosecution,  trial  or  punishment  for 
any  offence  barred  by  the  provisions  of  existing  law." 


170  I  EXTRATERRITORIAL  CASES. 

To  this  plea  in  bar  the  District  Attorney  has  filed  a  repli- 
cation alleging  that  said  plea  is  not  sufficient  because  the 
law  providing  for  the  limitation  of  prosecutions  in  this 
jurisdiction  is  defined  in  Title  XV  of  the  Consular  Court 
Regulations  for  China  and  not  by  the  provisions  of  section 
1044  of  the  Revised  Statutes.  Sec.  82  of  Title  XV  of  said 
Consular  Court  Regulations  reads  as  follov^'s: 

"Heinout;  offences,  not  capital,  must  be  prosecuted  within  six  years; 
minor  offences  within  one." 

The  question  presented  is,  Does  the  Consular  Court  Reg- 
ulation referred  to  furnish  the  rule  of  law  for  this  juris- 
diction, notwithstanding  the  provisions  of  sec.  1044  Rev. 
Stats.,  with  which  it  conflicts?  The  question  is  not  one  of 
easy  solution.  It  presents  many  difficulties  by  reason  of  the 
status  of  this  Court  as  an  extraterritorial  one  and  the 
necessity  thus  arising  for  differentiating  it  from  other 
United  States  Courts. 

The  jurisdiction  of  all  our  Federal  Courts  in  the  United 
States  is  clearly  defined  and  the  body  of  law  which  those 
Courts  administer  can  usually  be  ascertained  with  little 
difficulty.  This  is  not  equally  true  of  the  extraterritorial 
courts  created  by  the  United  States,  tho  the  necessity  for 
their  existence,  and  the  authority  under  which  they  have 
been  created,  has  never  been  questioned.  The  difficulties 
arise  from  the  admitted  fact  that  the  powers  of  these  tri- 
bunals have  never  been  clearly  defined. 

Sections  4083  to  4130,  inclusive,  of  the  Revised  Statutes 
of  the  United  States  are  a  codification  of  the  laws  enacted 
by  Congress  to  define  the  judicial  authority  conferred  upon 
Ministers  and  Consuls  in  conformity  with  the  provisions  of 
treaties  of  the  United  States  with  China  and  other  countries 
within  which  extraterritorial  jurisdiction  was  to  be  exer- 
cised. 

Sec.  4086  specifies  the  body  of  law  which  shall  be 
administered  by  such  Courts  and  its  provisions  may  briefly 
be  summarized  as  follows : 

1.  The  laws  of  the  United  States  are  extended  over  our  citizens 
in  China  "so  far  as  they  are  suitable"  to  give  effect  to  the  treaties 
with  China. 


UNITED  STATES  V.  ENGELBRACHT,  OCT.  25,  1909.      171 

2.  In  all  cases  where  such  laws  are  "not  adapted  to  the  object,  or 
are  deficient  in  the  provisions  necessary  to  furnish  suitable  remedies," 
the  common  law,  and  the  law  of  equity  and  admiralty,  "are  extended 
in  like  manner  over  our  citizens  in  China." 

3.  If  neither  the  common  law,  nor  the  law  of  equity  or  admiralty, 
nor  the  statutes  of  the  United  States,  "furnish  appropriate  and  suf- 
ficient remedies"  the  ministers,  respectively,  shall  supply  such  defects 
and  deficiencies  by  "decrees  and  regulations  which  shall  have  the  force 
of  law." 

Section  4117  relates  to  rules  of  procedure  for  the  Con- 
sular Courts  and  provides  that  they  shall  be  made  by  the 
minister  with  the  advice  of  the  several  consuls.  It  specifies 
various  matters  of  procedure  respecting  which  the  minister 
shall  make  rules  and  concludes  with  mandatory  authority 
"to  make  such  further  decrees  and  regulations,  under  the 
provisions  of  this  title,  as  the  exigency  may  demand." 

It  should  be  observed  that  this  latter  provision  relates 
not  only  to  matters  of  procedure  covered  in  section  4117, 
but,  as  stated,  to  such  further  decrees  and  regulations  as 
the  exigency  may  demand,  "under  the  provisions  of  this 
title,"  viz..  Title  XLVII,  which  includes  sec.  4086,  herein- 
before referred  to. 

Sec.  4118 .  provides  for  the  publication  of  such  reg- 
ulations, decrees  and  orders  and  makes  them  binding  and 
obligatory  until  annulled  or  modified  by  Congress.  Regula- 
tion 82,  referred  to,  is  one  of  those  thus  adopted  and  it 
has  not  been  annulled  nor  modified  by  Congress. 

On  June  30,  1906,  Congress  created  the  United  States 
Court  for  China.  It  should  first  be  noted  that  the  jurisdic- 
tion of  the  Consular  Courts  in  China,  defined  by  the  several 
statutes  above  cited,  had  been  exercised  for  many  years 
prior  to  the  passage  of  the  act  organizing  this  Court.  The 
act  provides  that  the  consular  courts  are  still  to  exercise 
a  limited  jurisdiction.  This  fact,  the  appellate  jurisdiction 
given  to  the  United  States  Court  for  China,  the  require- 
ment that  the  Judge  and  District  Attorney  shall  be  la-\\^'ers 
of  good  standing  and  experience,  and  other  manifest 
reasons,  indicate  that  the  general  purpose  of  Congress  was 
to  provide  a  higher  and  more  efficient  tribunal  than  had 
theretofore  existed  in  China  for  the  exercise  of  the  judicial 
functions  authorized  by  the  treaties. 


172  I  EXTRATERRITORIAL  CASES. 

The  act  is  neither  long  nor  elaborate  in  its  provisions. 
Section  4  relates  to  the  body  of  law  which  shall  guide  the 
Court  in  the  exercise  of  its  jurisdiction  and  provides: 

1.  The  treaties  must  be  complied  with. 

2.  The  jurisdiction  must  be  exercised  in  conformity  with 
the  laws  of  the  United  States  in  reference  to  the  American 
Consular  Courts  in  China  which  were  in  force  at  the  date 
of  the  passage  of  the  Act.  This  covers  such  parts  of  sec- 
tions 4083  to  4130,  inclusive,  of  the  Revised  Statutes  as  are 
applicable  to  China  and  the  regulations,  decrees  and  orders 
which  have  been  promulgated  in  pursuance  thereof  and 
are  given  the  force  of  law.^ 

One  exception  is  made,  and  only  one,  viz.,  that  sections 
4106  and  4107,  relating  to  summons  of  associates,  shall  not 
apply  to  this  Court.  The  significance  of  this  single  excep- 
tion must  be  recognized.  It  can  hardly  be  construed  other- 
wise than  as  an  affirmative  confirmation  of  all  the  other 
then  existing  laws  and  regulations.  The  familiar  maxim 
expressio  unius  est  exclusio  alterius  obtains. 

3.  When  "the  laws  now  in  force  in  reference  to  Amer- 
ican Consular  Courts  in  China"  are  deficient  in  certain 
named  respects,  resort  may  be  had  to  the  common  law  and 
the  law  as  established  by  the  decisions  of  the  courts  of  the 
United  States.  The  deficiencies  here  specified  differ  in  lan- 
guage and  substance  from  those  described  in  sec.  4086 
of  the  Revised  Statutes,  and  must  be  construed  in  connec- 
tion therewith  and  as  additional  thereto.  There  is  nothing 
in  section  4  of  the  act  which  touches  directly  the  question 
here  presented. 

Section  5  relates  to  the  procedure  of  the  court  and  pro- 
vides that  it  shall  be  "in  accordance,  so  far  as  practicable, 
with  the  existing  procedure  prescribed  for  Consular  Courts 
in  China  in  accordance  with  the  Revised  Statutes  of  the 
United  States,"  the  Judge  being  given  power  to  modify  and 
supplement  the  said  rules.  It  is  obvious  that  the  particular 
Revised  Statutes  to  which  reference  is  made  are  those  sec- 
tions which  we  have  already  recited,  contained  in  Title 
XLVII  in  pursuance  of  which  the  then  existing  procedure 

'  Sees.  4086,  4117,  and  4118. 


UNITED  STATES  V.  ENGELBRACHT,  OCT.  25,   1909.       173 

had  been  adopted.  The  words  "in  accordance  with"  are 
merely  descriptive  and  not  words  of  limitation. 

In  other  words  the  procedure  of  the  Court  which  this 
statute  provides  is  found  in  the  existing  Consular  Court 
Regulations.  The  statute  does  not  state  that  only  such 
regulations  shall  be  binding  as  the  Court  may  find  to  have 
been  made  in  harmony  with  the  Revised  Statutes  of  the 
United  States.  It  could  have  done  so  very  easily  by  the 
use  of  appropriate  words.  As  the  statute  stands  it  is  not 
rationally  open  to  any  other  construction  than  that  an- 
nounced. The  phrase  "prescribed  for  Consular  Courts  in 
China  in  accordance  with  the  Revised  Statutes  of  the  United 
States"  is  purely  and  simply  descriptive. 

All  the  existing  Regulations  had  been  laid  before  Con- 
gress, as  required  by  law,  many  years  before  this  statute 
was  passed,  and  it  must  be  presumed,  under  well  established 
doctrine,-  that  Congress  had  full  knowledge  thereof.  In 
fact  it  appears  to  the  Court  that  the  provision  referred  to 
cannot  be  considered  as  anything  less  than  an  affirmative 
recognition  and  confirmation  of  such  of  these  regulations,  at 
least,  as  relate  to  procedure.  Whether  or  not  the  act  must 
be  considered  as  recognizing  and  confirming  the  whole  body 
of  these  regulations  existing  at  the  date  of  the  passage  of 
this  act,  the  Court  does  not  at  this  time  undertake  to  say. 
It  is  proper  to  note,  however,  that  Congress  had  this  op- 
portunity to  annul  or  modify  any  of  these  regulations  but 
did  not.  Whatever  objections  may  have  been  theretofore 
made  to  these  regulations,  based  on  a  denial  of  the  constitu- 
tional authority  of  Congress  to  delegate  its  legislative 
powers,  it  seems  clear  to  the  Court  that  the  present  action 
of  Congress,  in  respect  to  such  then  existing  regulations 
as  relate  to  procedure  of  the  Consular  Courts,  operates  not 
only  as  si,  confirmation  thereof  but  practically  as  an  enact- 
ment of  such  regulations,  exactly  the  same  as  if  they  had 
been  verbally  recited  in  the  act  itself.  However  much  their 
origin  may  be  assailed,  the  regulations  adopted  under  sec- 
tion 4117  are  now  clearly  and  unquestionably  made  binding 
and  obligatory  on  this  Court  by  direct  and  specific  enact- 


'  Clinton  v.  Englebrecht,  13  Wall.   (U.  S.),  434,  20  L.  ed.  659. 


174  I  EXTRATERRITORIAL  CASES. 

ment.  If  section  1044  of  the  Revised  Statutes  had  thereto- 
fore any  application  in  the  Consular  Courts  of  China,  it  has 
no  force  as  a  rule  of  procedure  in  the  United  States  Court 
for  China,  because  Congress  has  provided  otherwise  in  the 
act  creating  the  Court.  Rule  82  of  the  Consular  Court  Reg- 
ulations is  made  the  law  of  this  jurisdiction  respecting  the 
limitation  of  criminal  prosecutions. 

II. 

While  this  holding  disposes  of  the  plea  in  bar  in  this  case, 
it  is  deemed  proper  to  state  that  there  are  other  and  addi- 
tional grounds  upon  which  the  Court  might  be  inclined  to 
sustain  the  validity  of  said  Rule.  We  premise  that  a  grave 
distinction  must  be  recognized  between  the  system  of  juris- 
prudence provided  for  in  the  Constitution  of  the  United 
States  and  that  which  Congress  has  provided  to  meet  ex- 
traterritorial emergencies  created  by  treaties  with  foreign 
governments.  There  is  ample  ground  for  contending  that 
such  legislation  as  Congress  has  passed  upon  this  subject 
was  well  within  its  constitutional  powers.  These  several 
sections  of  the  Revised  Statutes  had  for  their  purpose 

"to  organiie  and  carry  into  effect  the  system  of  jurisprudence  de- 
manded  by  such  treaties."  ^ 

It  was  obviously  another  and  entirely  different  system 
of  jurisprudence  from  that  already  provided  by  Congress 
for  operation  within  the  geographical  boundaries  of  the 
United  States.     The  Constitution  ^  provides  that 

"all  treaties  made  or  to  be  made  under  the  authority  of  the  United 
States  shall  be  a  part  of  the  supreme  law  of  the  land." 

When  a  treaty  duly  made  provides  for  the  exercise  of 
judicial  powers  by  some  officer  of  the  United  States  within 
the  borders  of  a  foreign  country,  the  necessity  arises  for 
some  system  of  jurisprudence  to  provide  for  the  execution 
of  the  treaty  in  that  respect.     As  the  Supreme  Court  said : 

"By  the  Constitution  *  *  *  a  government  is  ordained  and 
established  for  the  United  States  of  America  and  not  for  countries 
outside  of  their  limits."  * 

'Rev.  Stats,  sec.  4117. 

'  Art.  VI. 

•  In  re  Ross,  ante,  p.  50. 


UNITED  STATES  V.  ENGELBRACHT,  OCT.  25,   1909.       175 

The  power  of  Congress  to  create  a  system  of  juris- 
prudence for  operation  in  foreign  territory  in  fulfillment 
of  treaty  privilege,  it  has  been  asserted,*^  may  rest 
on  sec.  8,  article  I,  of  the  Constitution,  which  gives  Con- 
gress the  power  to  regulate  commerce  with  foreign 
nations  and  a  subsequent  clause  of  the  same  section  which 
gives  Congress  power  to  enact  laws  to  define  and  punish 
offences  against  the  law  of  nations  and  to  carry  into  exe- 
cution all  powers  vested  by  the  Constitution  in  the  Govern- 
ment of  the  United  States  or  in  any  department  or  officer 
thereof. 

The  President,  by  and  with  the  consent  of  the  Senate, 
is  empowered  to  make  treaties  and  as  they  become  a  part 
of  the  supreme  law  of  the  country,  it  is  not  a  straining  of 
these  constitutional  provisions  to  hold  that  Congress  de- 
rives from  them  full  power  to  enact  such  legislation  as  is 
necessary  to  give  full  effect  to  treaty  stipulations. 

We  do  not  at  this  time  give  further  consideration  to  the 
question  thus  raised  since,  in  the  judgment  of  the  Court, 
a  final  determination  thereof  is  not  necessary  in  order  to 
dispose  of  the  particular  matter  now  presented. 

III. 

But  if  it  were  possible  that  section  5  of  the  act  creating 
this  Court  could  not  be  construed  as  confirming  and  enacting 
into  law  Rule  82  of  the  Consular  Court  Regulations,  and 
thus  amending,  to  that  extent,  section  1044  of  the  Revised 
Statutes,  there  are  still  other  rational  grounds  upon  which 
to  assert  that  said  Rule  controls  procedure  for  this  Court. 

There  are  abundant  authorities  which  sustain  the  rule 
that  statutes  of  limitation  are  statutes  of  procedure  and 
relate  to  the  remedy." 

"It  is  to  be  noted,  however,  as  an  important  circumstance,  that 
the  same  claim  may  sometimes  be  a  mere  matter  of  process,  and  so 
determinable  by  the  law  of  the  forum,  and  sometimes  a  matter  of 

'  Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  68. 

'Bishop,  Statutory  Crimes,  Sees.  175,  176,  264a;  Story,  Conflict 
of  Laws,  sec.  576;  Lewis,  Sutherland,  Statutory  Construction,  p.  663; 
Minor,  Conflict  of  Laws,  521;  Dicey,  Conflict  of  Laws  (Moore's  ed.), 
711. 


176  I   EXTRATERRITORIAL   CASES. 

substance  going  to  the  merits  and,  therefore,  determinable  by  the  law 
of  the  contract.  This  is  illustrated  in  the  application  of  the  defence 
arising  upon  the  Statute  of  Limitations.  In  the  coui'ts  of  England 
and  America,  that  defence  is  governed  by  the  law  of  the  forum  as 
being  a  matter  of  a  mere  procedure;  while  in  continental  Europe  the 
defence  of  prescription  is  regarded  as  going  to  the  substance  of  the 
contract  and,  therefore,  as  governed  by  the  law  of  the  seat  of  the 
obligation." ' 

Mr.  Secretary  Bayard  in  a  letter  to  Minister  Denby,  of 
April  27,  1887,  gave  full  recognition  to  this  principle,  hold- 
ing that  the  portion  of  said  regulations  embraced  in  title 
XV  (which  includes  Rule  82) 

"is  to  be  viewed  as  a  rule  of  court  expressing  a  principle  open  to 
modification  by  the  court  that  issued  it.  It  stands  in  the  same 
position  as  do  the  equity  rules  adopted  by  the  Supreme  Couii;  of  the 
United  States  and  courts  of  the  several  States,  not  as  a  statutory 
mandate,  to  remain  in  foi'ce  until  expressly  repealed  or  modified,  but 
as  a  principle  and  regulation  of  practice  which  it  is  open  to  the  court 
to  expand  or  vary  as  the  purpose  of  justice  may  require." 

We  are  not  at  present  concerned  with  Secretary  Bayard's 
view  respecting  the  validity  of  such  regulations  as  embrace 
substantive  law.  ^ 

Mr.  Secretary  Fish  also  recognized  "^'  distinctly  the  right 
of  the  ministers  to  adopt  rules  of  procedure  and  the  in- 
tegrity of  the  doctrine  has  likewise  been  recognized  by  the 
courts  in  numerous  other  cases.  A  clause  in  the  organic 
act  of  the  territory  of  Montana  declared 

"that  the  Constitution,  and  all  laws  of  the  United  States  which  are 
not  locally  inapplicable,  shall  have  the  same  force  and  effect  within 
the  said  Territory  of  Montana  as  elsewhere  in  the  United  States." 

It  was  argued  that,  by  virtue  of  this  enactment,  all  regu- 
lations respecting  judicial  proceedings  which  are  contained 
in  any  of  the  acts  of  Congress  are  imported  into  the  practice 
of  the  territorial  courts  and  that  territorial  legislation  on 
the  procedure  of  territorial  courts  which  abolish  the  dis- 
tinct forms  and  modes  of  proceeding  in  law  and  equity  was 


'  Pritchard  v.  Norton,  106  U.  S.    124,  27  L.  ed.  104. 
"  See  also  opinion  of  Attorney  General  Gushing,  Ops.  Attys.  Gen., 
VII,  495. 

"Moore,  Int.  Law  Digest,  II,  620,  621. 


UNITED  STATES  V.  ENGELBRACHT,  OCT.  2  5,   19  09.       177 

therefore  contrary  to  the  said  organic  act.  The  Court 
held"  that 

"this  proposition  is  not  tenable.  Laws  regulating  the  proceedings  of 
the  United  States  courts  are  of  specific  application,  and  are,  in  truth 
and  in  fact,  locally  inapplicable  to  the  courts  of  a  territory.  There 
is  a  law  authorizing  this  court  to  appoint  a  reporter.  In  one  sense 
this  law  is  not  locally  inapplicable  to  the  Supreme  Court  of  the  ter- 
ritory but  in  a  just  sense  it  is  so.  The  law  has  a  specific  application 
to  this  court,  and  cannot  be  applied  to  the  territorial  court  without 
an  evident  misconstruction  of  the  true  meaning  and  intent  of  Con- 
gress in  the  clause  of  the  thirteenth  section  above  referred  to.  That 
clause  has  the  effect,  undoubtedly,  of  importing  into  the  territory  the 
laws  passed  by  Congress  to  prevent  and  punish  offences  against  the 
revenue,  the  mail  service,  and  other  laws  of  a  general  character  and 
universal  application;  but  not  those  of  specific  application. 

"The  acts  of  Congress  respecting  proceedings  in  the  United  States 
courts  are  concerned  with,  and  confined  to,  those  courts,  considered 
as  part  of  the  Federal  system  and  as  invested  with  the  judicial  power 
of  the  United  States  expressly  conferred  by  the  Constitution  and  to 
be  exercised  in  correlation  with  the  presence  and  jurisdiction  of  the 
several  state  courts  and  governments.  *  *  *  As  before  said, 
these  acts  have  specific  application  to  the  courts  of  the  United  States, 
which  are  courts  of  a  peculiar  character  and  jurisdiction." 

A  reading  of  the  enactments  of  Congress  relating  to  lim- 
itations in  the  courts  of  the  United  States  shows  that 
they  are  not  applicable  to  the  United  States  Court  for  China. 
Section  1043  can  be  applied  only  to  courts  in  which  prose- 
cutions are  instituted  by  indictment;  section  1044  only 
to  courts  in  which  they  are  instituted  by  indictments  and  in- 
formations. In  our  courts  in  China  indictments  are  not 
known  and  criminal  prosecutions  may  be  instituted  by  com- 
plaints of  private  parties ;  also  informations  in  the  courts  in 
China  are  provided  for  by  laws  different  from  those  defining 
infoimations  in  the  courts  of  the  United  States.^-  These 
laws,  therefore,  are  not  applicable  to  this  jurisdiction  ac- 
cording to  the  holding  in  the  case  last  cited. 

The  Revised  Statutes  provide  that;  "the  laws  of  the  sev- 
eral states,  *  *  *  shall  be  regarded  as  rules  of  deci- 
sion in  trials  at  common  law,  in  the  courts  of  the  United 


"Hornbuckle  v.  Toombs,  18  Wall.,  648,  21  Law.  ed.  966;  on  appeal 
to  the  Supieme  Court  of  the  United  States  from  the  Supreme  Court 
of  the  territory  of  Montana. 

''Revised   Statutes,  sees.   1025,   4087. 

14008  O.  W. 12 


178  I  EXTRATERRITORIAL  CASES. 

States,  in  cases  where  they  apply."  It  was  argued  that 
limitation  laws  of  the  states  did  not  "apply"  to  "causes"  of 
action  created  by  Congressional  legislation  and  enforcible 
only  in  the  Federal  courts."  The  court  held  '^  that  this 
asserted  a  distinction  rather  than  pointed  out  a  difference. 
It  also  said : 

-  "If  these  actions  be  exempted  from  the  state  statute  of  limitations, 
it  would  undoubtedly  follow  that  other  statutes  of  a  similar  nature, 
adopting  the  local  practice  for  certain  purposes,  would  be  equally 
inapplicable.     *     *     * 

"Indeed,  if  the  local  statutes  of  limitations  be  not  applicable  to 
these  actions,  it  is  difficult  to  see  why  the  process,  declaration,  and 
other  pleadings  in  the  code  states  should  not  be  in  common  law 
form,  notwithstanding  section  914  adopting  the  state  practice  in 
that  particular;  *  or  why,  in  every  other  respect,  the  suit  should 
not  be  conducted  regardless  of  the  laws  of  the  particular  state. 

"The  truth  is  that  statutes  of  limitations  affect  the  remedy  only 
and  do  not  impair  the  right  and  that  the  settled  policy  of  Congress 
has  been  to  permit  rights  created  by  its  statutes  to  be  enforced  in 
the  manner  and  subject  to  the  limitations  prescribed  by  the  laws  of 
the  several  states." 

It  would  seem  that  the  same  principle  would  apply  to  crim- 
inal cases  in  China,  since  the  local  procedure  has  been 
adopted  in  criminal  as  well  as  in  civil  cases.  Reference  to 
section  4087  of  the  Revised  Statutes  will  show  how  fully 
this  matter  of  procedure  in  criminal  cases  has  been  en- 
trusted to  local  officials.  Even  the  informations  must  be 
authenticated  in  such  way  as  shall  be  prescribed  by  the 
minister.  It  might  well  be  asked,  How  can  the  term  in- 
formation in  section  1044  be  held  to  apply  to  a  pleading 
which  might  be,  and  in  fact  is,  different  from  an  informa- 
tion provided  by  Congress  for  courts  in  the  United  States? 

Under  these  authorities  the  Court  would  be  inclined  to 
hold,  that  Rule  82,  promulgated  by  the  minister  under  sec- 
tion 4117  of  the  Revised  Statutes,  was  a  part  of  the  pro- 
cedure of  the  Court  and  was  operative  notwithstanding 
its  conflict  with  a  general  statute  of  the  United  States. 
The  statute  of  limitations,  codified  in  section  1044,  was 
passed  in  1794.  Rule  82  was  promulgated  in  1864  and 
was  subject  to  annulment  or  modification  by  Congress  but 

"  Campbell  v.  Haverhill,  155  U.  S.  610,  39  L.  ed.  280,  per  Brown,  /. 


UNITED  STATES  V.  ENGELBRACHT,  OCT.  25,   1909.       179 

was  made  binding  and  obligatory  until  so  annulled.  With- 
out annulment  Congress  amended  ^*  the  general  act  in  1876, 
substantially  maintaining  it  in  force. 

It  is  a  settled  rule  of  construction  that  when  there  is  a 
general  law  applicable  to  the  entire  state  and  a  special  law 
applicable  in  a  particular  locality  only,  the  special  law 
will  govern  in  the  particular  locality.''' 

"A  general  statute  without  negative  words  will  not  repeal  by 
implication  from  their  repugnancy  the  provisions  of  a  former  one 
which  is  special,  local,  or  particular,  or  which  is  limited  in  its  ap- 
plication, unless  there  is  something  in  the  general  law  or  in  the 
course  of  legislation  upon  its  subject-matter  that  makes  it  manifest 
that  the  legislature  contemplated  and  intended  a  repeal.  It  is  the 
established  rule  of  construction  that  the  law  does  not  favor  a  repeal 
by  implication,  but  that  where  there  are  two  or  more  provisions 
relating  to  the  same  subject-matter  they  must,  if  possible,  be  con- 
strued so  as  to  maintain  the  integrity  of  both.  It  is  also  a  rule 
that  where  two  statutes  treat  of  the  same  subject,  one  being  special 
and  the  other  general,  unless  they  are  irreconcilably  inconsistent, 
the  latter,  altho  latest  in  date,  will  not  be  held  to  have  repealed 
the  former,  but  the  special  act  will  prevail  in  its  application  to  the 
subject-matter  as  far  as  coming  within  its  particular  provisions. 
A  special  statute  providing  for  a  particular  place,  or  applicable  to 
a  particular  locality,  is  not  repealed  by  a  statute  general  in  its 
terms  and  application  unless  the  intention  of  the  legislature  to  repeal 
or  alter  the  special  law  is  manifest  altho  the  terms  of  the  general 
act  would,  taken  strictly  and  but  for  the  special  law,  include  the 
case  or  cases  provided  for  by  it." 

This  well  recognized  doctrine  has  even  more  potent  ap- 
plication when,  as  in  this  case,  the  particular  locality  in 

''  Act  of  Congress  of  Feb.  1,  1876,  19  U.  S.  Stats,  at  Large,  21. 
[The  sole  amendment  was  to  give  the  vice  consul  general  judicial 
functions.  But  the  argument  of  the  text  is  greatly  reinforced  by  an 
earlier  and  much  more  extensive  amendment  (Act  of  July  1,  1870,  16 
U.  S.  Stats,  at  Large,  ch.  194,  p.  183)  which  completely  changed  the 
appellate  jurisdiction  and  procedure  of  the  original  act  besides  pro- 
viding for  prisons  in  China  and  Japan.  See  this  act  applied  and 
construed  in   The   Spark  v.   Lee   Choi   Chum,   I    Sawy,    (U.    S.)    713, 

22  Fed.    Cas.    871    (1872)  ;    Tazaymon    v.    Twombley,    5    Sawy.    79, 

23  Fed.  Cas.  815  (1878)  ;  The  Ping-On  v.  Blethen,  11  Fed.  607 
(1882)].     Ed. 

''Black,  Interpretation  of  Laws,  117;  Lewis'  Sutherland,  Stat- 
utory  Construction,   I,   526-528   and   cases   cited. 

^'^  Lewis,  Sutherland,  Statutory  Construction,  I,  526-529. 


180  I  EXTRATERRITORIAL  CASES. 

whith  the  special  law  is  to  have  effect,  is  entirely  outside 
of  the  boundaries  of  the  United  States  and  under  a  special 
system  of  jurisprudence. 

The  Court  has  not  overlooked  the  fact  that  many  of  these 
regulations  are  gravely  defective.  It  may  well  be  that 
Congress  so  regarded  them  as  it  has  given  to  the  Judge  of 
this  Court  "authority  *  *  *  to  modify  and  supple- 
ment such  rules  of  procedure."  In  due  time  the  task  of 
curing  these  defects  will  be  undertaken.^'  Meanwhile  these 
rules  of  procedure  are  binding  and  obligatory  and  must 
be  administered. 

The  plea  in  bar  is 

OVERRULED.^^ 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Robert  W.  Sexton,  Appellant,  v.  United  States. 

[Criminal  Proceeding  No.  32;  filed  Nov.  29,  1909.] 

APPEAL    FROM    THE    CONSULAR    COURT    FOR    THE    DISTRICT    OF 

SHANGHAI. 

SYLLABUS. 
(By  the  Editor.) 

1.  APPEALS:    TRIAL  DE   Novo,   with   reception   of   additional   evidence 

in  this  court,  in  cases  appealed  from  the  Consular  Courts  can 
be  allowed,  if  at  all,  only  upon  strong  showing  that  "justice 
will   be   promoted   thereby." 

2.  CITIZENSHIP:  EVIDENCE  of  a  change  of  citizenship,  showing  release 

from   the   obligations    thereof,   must   be   clear    and    convincing. 

"  They  have  been  undertaken  by  the  present  Judge  of  the  Court 
in  the  form  of  the  Extraterritorial   Remedial   Code.     Ed. 

^'  After  a  ti-ial  on  the  merits,  in  which  it  seems  that  depositions 
were  used,  the  court,  on  April  18,  1910,  entered  a  judgment  of  ac- 
quittal, applying  the  rule  of  reasonable  doubt  and  citing  U.  S.  v. 
Harper,  33  Fed.  482,  observing,  nevertheless,  that  if  the  evidence 
were  "offered  in  a  civil  action,  there  would  be  no  doubt  whatever  of 
a  verdict  adverse  to  the  defendant"  and  that  (referring  to  the 
consular  court)  "it  was  intolerable  that  such  a  record  should  be 
allowed  to  stand  in  an  American  court  of  justice  and  especially  in 
an  extraterritorial  court  in  China  and  in  a  case  in  which  the  plain- 
tiff was   a   Chinese." 


SEXTON  V.  UNITED  STATES,  NOV.  29,  1909.  181 

3.  VAGRANCY:    defined  and  discussed. 

4.  Id.  :   Information  charging,  held  sufficient. 

5.  Id.  :  Evidence  found  not  to  establish. 

W.  S.  Fleming,  Esq.,  for  appellant. 

Appellant  pleaded  foreign  nationality,  having  taken  an  oath  of 
allegiance  to  the  Boer  Republic  in  South  Africa  during  the  war 
between  that  Republic  and  Great  Britain.  Expatriation  is  a  natural 
and  inherent  right.  (Revised  Statutes,  section  1999;  Van  Dyne, 
Citizenship,  pp.  269-82.) 

Consular  Court  Regulation  of  April  13,  1907,  is  not  law,  for  the 
reason  that  it  does  not  conform  to  the  Revised  Statutes,  section  4086, 
4117-9,  which  must  be  interpreted  together,  and  which  require  taking 
advice  of  the  several  Consuls  before  promulgating  a  regulation.  (26 
Encyc.  616,  618.) 

The  evidence  did  not  support  the  finding  of  guilty. 

Arthur  Basset,  Esq.,  U.  S.  Dist.  Atty.,  contra. 

American  citizenship  by  birth  is  presumed  to  continue  until  change 
of  nationality  is  affirmatively  proved.  Appellant  offered  no  docu- 
mentary proof  of  naturalization  in  the  Boer  Republic  of  South  Africa, 
and  no  proof  of  the  naturalization  laws  of  that  Republic.  An  oath 
of  allegiance  to,  and  undertaking  military  service  for,  a  belligerent 
does  not  effect  expatriation.  (7  Cyc.  147;  3  Moore,  International 
Law  Digest,  722-3;  Van  Dyne,  Citizenship  p.  277;  1  Lewis'  Suther- 
land, Statutory  Construction,  22.) 

Vagrancy  is  an  offense  under  the  laws  of  the  United  States  in 
force  in  China.  Biddle  v.  United  States,  ante,  p.  120,  Alaska  Criminal 
Code,  Section  151.) 

Evidence  that  appellant  was  an  idle  and  dissolute  person,  without 
visible  means  of  honest  and  reputable  support,  whose  sole  occupation 
was  that  of  manager  of  a  common  gambling  house,  is  sufficient  for 
a  finding  of  guilty  on  a  charge  of  vagrancy.      (9  Cyc.  523,  527,  538.) 


Thayer,  J.: 

This  is  an  appeal  from  a  final  judgment  of  the  Consular 
Court  at  Shanghai  finding  the  appellant  guilty  of  the  crime 
of  vagrancy.  On  instituting  his  appeal  in  this  Court  the  ap- 
pellant applied  as  a  matter  of  right  for  a  trial  de  novo.  He 
submitted  no  showing  tending  to  establish  the  fact  that  the 
interests  of  justice  would  be  promoted  thereby.  This  ap- 
plication having  raised  an  important  question  of  proced- 
ure, permission  was  granted  to  any  member  of  the  bar, 


182  I  EXTRATERRITORIAL  CASES. 

tho  not  of  counsel,  to  submit  argument  on  the  applica- 
tion, either  orally  or  in  writing. 

After  due  consideration  the  Court  provisionally  ruled 
that  there  was  no  warrant  under  existing  law  for  a  trial 
de  novo  of  a  case  brought  here  on  appeal  from  a  Consular 
court.  The  same  ruling,  with  slight  qualification,  is  now 
made  final. 

Section  2  of  the  Act  of  June  30,  1906,  creating  the  Court, 
defines  its  appellate  jurisdiction  and  provides  that  either 
party  shall  have  the  right  of  appeal  to  it  from  all  final 
judgments  of  the  Consular  Courts,  including  those  of  Korea. 
The  act  contains  nothing  in  terms  upon  which  to  base  a 
conclusion  that  this  appellate  jurisdiction  was  intended  to 
be  exercised  in  any  other  way  than  that  established  in  other 
appellate  courts  of  the  United  States ;  but  in  section  5  of 
the  Act  it  is  provided  that  the  procedure  of  the  Court  shall 
be,  so  far  as  practicable,  in  accordance  with  the  existing 
procedure  of  the  Consular  Courts  in  China. 

The  provision  relating  to  the  exercise  of  appellate  juris- 
diction by  the  Minister  is  covered  in  section  4091  of  the 
Revised  Statutes.  That  section  provides  that  the  Minister 
shall  hear  and  decide  all  cases  which  come  before  him  on 
appeal  and  it  empowers  him  to  decide  finally  on  such  an 
appeal  "upon  the  evidence  which  comes  with  it,  or  to  hear 
the  parties  further,  if  he  thinks  justice  will  be  promoted 
thereby."  The  authority  given  to  the  Minister  to  hear  the 
parties  further  had  one  condition  precedent,  namely,  a  con- 
clusion that  justice  ivould  he  promoted  thereby.  Unless  sat- 
isfaction on  that  point  is  first  had,  no  authority  is  conferred 
to  go  outside  the  record  and  no  additional  evidence  can  be 
received.  In  the  case  at  bar  the  defendant  made  no  showing 
upon  which  to  base  a  contention  that  justice  would  be  pro- 
moted by  hearing  the  parties  further  and  thus  no  ground 
was  laid  upon  which  the  request  for  a  trial  de  novo  could 
rightfully  be  considered.  The  absence  of  such  showing  was 
sufficient  to  compel  the  denial  of  the  request  for  trial  de 
novo. 

It  is  well  known  that  in  the  Federal  appellate  courts  the 
uniform  practice  is  to  try  cases  on  the  record  as  brought 
up.     From  this  practice  Congress  made  a  wide  departure  in 


SEXTON  V.  UNITED  STATES,  NOV.  29,  1909.  183 

permitting'  the  Minister,  sitting  as  an  appellate  judge,  to 
receive  any  additional  evidence  to  that  contained  in  the 
record.  We  do  not  question  the  wisdom  of  such  action, 
but  we  think  care  should  be  exercised  not  to  emphasize  that 
departure  or  to  give  the  provision  wider  significance  than 
that  intended  by  Congress.  Doubtless  in  making  such  an 
unusual  provision  consideration  was  given  to  the  fact  that 
consular  courts  as  then  organized  were  not  well  equipped 
for  the  administration  of  justice  and  that  for  this  reason 
something  more  than  the  usual  powers  of  revision  on  ap- 
peal might  properly  be  vested  in  the  Minister.  But  the 
law  itself  contains  evidence  that  the  discretion  conferred 
upon  the  Minister  was  to  be  conservatively  exercised.  He 
must  be  satisfied  that  "justice  ivill  he  promoted  thereby" 
before  he  can  exercise  authority  under  the  statute  to  admit 
additional  evidence.  To  hear  the  parties  further  cannot 
rationally  be  construed  as  giving  power  generally  to  try 
every  case  de  novo  in  the  appellate  court,  merely  on  the 
request  of  one  of  the  parties.  A  fair  construction  of  the 
law  requires  that  some  strong  showing  must  be  made,  sub- 
stantially such  a  showing  as,  under  familiar  rules,  would 
be  sufficient  to  justify  the  granting  of  a  new  trial,  in  order 
to  admit  of  the  reception  of  evidence  in  addition  to  that  in 
the  record ;  and  some  even  stronger  showing  will  be  insisted 
upon  before  the  appellate  court  can  possibly  be  justified  in 
granting  a  trial  de  novo.  The  Court  does  not,  therefore, 
undertake  at  this  time  to  say  that  in  no  case  on  appeal  will 
a  trial  de  novo  be  granted  but  contents  itself  with  saying 
that,  in  its  judgment,  such  cases  will  rarely,  if  ever,  arise. 
The  request  of  the  appellant  for  a  trial  de  novo  must  be 
denied.' 

II. 

In  the  trial  court  the  defendant  filed  a  plea  to  the  juris- 
diction alleging  that  he  was  not  a  citizen  of  the  United 
States.  In  substance  he  stated  in  said  plea  that,  altho 
he  was  a  native  born  citizen  thereof,  he  had  renounced 
allegiance  to  the  Government  in  the  year  1900  and  at  the 

'Rev.  Stat.,  sec.  4091;  34  U.  S.  Stats,  at  Large,  p.  814,  Ch.  3934 
sec.  5;  U.  S.  v.  Engelbracht,  ante,  p.  169. 


184  I  EXTRATERRITORIAL  CASES. 

same  time  had  taken  the  oath  of  allegiance  to  the  Zuid 
Afrikaansche  Republik  (commonly  spoken  of  as  the  Boer 
Republic),  had  become  a  citizen  thereof  and  that  he  had 
not  since  that  time  been  naturalized  in  the  United  States 
nor  had  his  American  citizenship  been  restored.  After 
taking  testimony  the  trial  court  overruled  this  plea  and 
such  ruling  is  objected  to  as  reversible  error. 

The  defendant  did  not  supply  any  documentary  proof 
of  his  alleged  naturalization  as  a  citizen  of  the  Boer  Re- 
public. On  his  direct  examination  he  testified  that  on 
February  19,  1900,  he  took  the  oath  of  allegiance  to  the 
Boer  Republic  and  foreswore  allegiance  to  the  United  States 
and  that  during  the  progress  of  the  war  he  performed 
police  duty  in  the  city  of  Johannesburg.  On  cross-exam- 
ination he  testified  that  the  oath  was  administered  in  the 
Dutch  language ;  that  he  was  not  familiar  with  that  lan- 
guage; that  he  did  not  know  what  the  particular  terms  of 
said  oath  were ;  and  that  he  procured  thereafter  citizenship 
papers  and  a  permit  to  carry  a  gun.  He  did  not  present 
any  such  papers  to  the  Court. 

The  only  corroboration  sought  to  be  given  to  the  testimony 
of  the  defendant  in  these  respects  is  that  of  two  witnesses, 
the  testimony  of  one  of  whom  is  irrelevant.  The  other 
witness  testifies  that  he  was  present  at  the  relief  of  Johan- 
nesburg in  1900  and  that  he  saw  the  defendant  there  at 
that  time ;  and  that  he  must  have  been  a  burgher,  otherwise 
he  could  not  have  been  there.  He  had  to  be  either  a  burgh- 
er or  Briton.  But  the  testimony  of  this  witness  is  of 
no  value  in  determining  the  issue,  since  from  no  point  of 
view  can  he  be  regarded  as  an  expert  witness  qualified 
to  declare  what  were  the  provisions  of  the  naturalization 
laws  of  the  Boer  Republic. 

At  the  time  when  the  appellant  alleges  he  took  the  oath 
of  allegiance,  a  state  of  war  existed  between  the  Boer  Re- 
public and  Great  Britain.  He  says  he  was  at  that  time 
engaged  in  the  saloon  business.  He  admits  that  he  took 
the  oath  to  keep  out  of  trouble ;  that  the  oath  was  adminis- 
tered in  Dutch,  a  language  with  which  he  was  not  familiar ; 
that  he  did  not  understand  its  particular  terms ;  and  that 
he  performed  only  police  duty.     It  is  quite  possible  that  the 


SEXTON  V.  UNITED  STATES,  NOV.  2  9,  1909.      185 

oath  alleged  to  have  been  taken  by  the  appellant  might 
have  been  an  oath  of  military  allegiance.  It  is  well  estab- 
lished that  such  an  oath,  taken  to  a  belligerent  and  within 
his  lines,  does  not  operate  to  change  nationality.  While 
he  testifies  freely  as  to  the  character  of  the  oath  and  as 
to  his  intent  in  so  doing,  in  the  absence  of  any  documentary 
proof  of  his  naturalization  and  in  view  of  the  obvious  self 
interest  which  would  influence,  if  not  dictate,  the  character 
of  his  testimony  on  the  present  issue,  the  Court  is  not 
inclined  to  attach  much  weight  thereto.  In  addition  to  this 
there  does  not  appear  in  the  record  any  proof  respecting 
the  naturalization  laws  of  the  Boer  Republic  so  as  to  enable 
the  Court  to  determine  whether  there  had  been  even  a  prima 
facie  compliance  therewith. 

This  appellant  is  seeking  to  avoid  the  obligations  of  Amer- 
ican citizenship.  The  Court  is  entirely  satisfied  that  the  law- 
will  not  permit  him  to  do  so  upon  any  such  loose  and  incon- 
clusive showing  as  that  made  in  this  record.  The  question 
presented  by  the  facts  of  this  case  must  be  carefully  differ- 
entiated from  that  which  arises  when  a  citizen  of  the  United 
States,  whether  native  born  or  naturalized,  residing  in  some 
foreign  State,  appeals  to  the  executive  department  for  pro- 
tection. It  is  to  this  latter  that  the  cases  and  authorities 
which  were  cited  by  appellants'  counsel  mainly  relate.  Pro- 
tection is  not  infrequently  denied  tho  the  identical  facts 
might  not  be  sufficient  to  justify  a  judgment  of  expatriation 
in  one  who  is  seeking  to  escape  the  obligations  of  citizenship. 
The  trial  court  committed  no  error  in  taking  jurisdiction 
of  the  defendant  as  an  American  citizen. 

III. 

On  April  13,  1907,  the  American  Minister  at  Peking  pro- 
mulgated a  Regulation  defining  the  crime  of  vagrancy  in  the 
jurisdiction  of  China,  providing  for  the  trial  of  any  citizen 
of  the  United  States  charged  with  that  offense,  and  fixing 
the  penalty  for  the  offense  by  fine  and  imprisonment  in  such 
terms  as  would  give  the  consular  courts  original  jurisdic- 
tion thereof.  Counsel  for  the  defendant  assumed  that  the 
information  in  this  case  was  based  on  that  Regulation  and 
in  the  trial  court  attacked  its  validity  on  the  ground  that  it 


186  I   EXTRATERRITORIAL  CASES. 

was  not  adopted  nor  promulgated  in  accordance  with  the 
provisions  of  sections  4117,  4118,  and  4119  of  the  Revised 
Statutes  in  respect  to  submission  of  the  same  to  the  several 
Consuls  of  the  United  States  in  China  prior  to  its  publica- 
tion. However,  ruling  will  not  be  made  on  the  point  thus 
raised,  since  for  other  reasons  the  Regulation  is  held  to  be 
inoperative  so  far  as  relates  to  fixing  a  definition  of  the 
crime  of  vagrancy. 

1.  The  regulation  referred  to  was  promulgated  sub- 
sequent to  the  date  of  the  act  creating  this  Court  and 
therefore  was  not,  at  that  time,  a  "law  of  the  United  States 
now  in  force  in  reference  to  the  American  consular  courts 
in  China."  It  has  been  a  mooted  question  whether  or  not, 
since  the  passage  of  the  Act  of  June  30,  1906,  creating  this 
Court,  any  power  remained  in  the  Minister  for  the  adoption 
of  decrees  or  regulations  for  any  purpose  whatever,  whether 
covering  procedure  or  substantive  law.  Inasmuch  as  the 
Judge  of  this  Court  is  given  authority  from  time  to  time 
"to  modify  and  supplement  said  rules  of  procedure,"  -  it 
cannot  be  reasonably  concluded  that  the  Minister  continues 
to  have  power  in  that  respect  since  such  contention  would 
necessarily  involve  the  exercise  of  that  power  by  two  in- 
dependent officers  with  inevitably  conflicting  results.'' 

2.  Whatever  view  may  be  taken  respecting  his  powers 
to  make  decrees  embracing  substantive  law,  either  before  or 
after  the  creation  of  this  Court,  it  is  obviously  not  bound 
by  a  ministerial  decree  promulgated  after  the  creation  of 
the  Court  and  in  conflict  with  the  law  which  it  is  required 
to  administer.  Section  4  of  the  creating  act  provides  that 
the  jurisdiction  of  this  Court  shall  be  exercised  and  enforced 
in  conformity  with  the  treaties  with  China  and  the  "laws 
of  the  United  States  which  are  now  in  force  in  reference 
to  the  American  consular  courts  in  China."  The  body  of 
laws  thus  referred  to  is  defined  mainly  in  section  4086  of 
the  Revised  Statutes.  By  that  section  the  laws  of  the 
United  States,  so  far  as  they  are  suitable,  are  extended  over 


■  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Pt.  I, 
Ch.  3934,  sec.  5. 

^  This  is  now  the  accepted  doctrine  in  all  quarters.  The  State  De- 
partment, on  March  2,  1917,  expressed  the  same  opinion.     Ed. 


SEXTON  V.  UNITED  STATES,  NOV.  29,  1909.      187 

all  American  citizens  in  China.  When  such  laws  are  not 
adapted  to  the  object  or  are  deficient  in  provisions  necessary 
to  provide  suitable  remedies,  the  common  law  and  the  law 
of  equity  and  admiralty  are  extended  over  such  citizens. 
And  if  neither  such  bodies  of  law  furnish  appropriate  and 
sufficient  remedies,  the  Minister  is  authorized,  by  decrees 
and  regulations  which  shall  have  the  force  of  law,  to  supply 
such  defects  and  deficiencies. 

The  Regulation  in  question  was  evidently  intended  to 
supply  a  supposed  existing  deficiency,  in  that  there  was 
believed  to  be  no  law  of  the  United  States  or  other  law 
available  to  this  Court  defining  vagrancy  as  a  crime  and 
providing  for  its  punishment.  But  since  that  Regulation 
was  promulgated  the  Court  of  Appeals  has  construed  the 
jurisdictional  clause  of  the  creating  act  and  defined  the 
body  of  law  available  to  this  Court,  in  a  decision  of  very 
great  importance  in  this  jurisdiction.^  The  crime  there 
charged  was  obtaining  money  or  goods  under  false  pre- 
tenses and  the  Court  sustained  the  information  upon  which 
the  defendant  was  tried,  invoking  legislation  enacted  by 
Congress  for  Alaska  and  the  District  of  Columbia,  over 
which  it  exercises  exclusive  jurisdiction.  In  addition  to 
these  statutes  the  Court  directs  attention  to  section  2  of 
the  Act  ^  of  July  7,  1898,  providing  for  the  utilization  of 
state  laws  in  Federal  courts  for  the  punishment  of  offenses 
committed  within  the  states  in  any  place  over  which  the 
national  government  exercises  exclusive  jurisdiction,  the 
punishment  of  which  is  not  provided  for  by  any  law  of  the 
United  States. 

The  Court  of  Appeals  held,  in  view  of  these  several  stat- 
utes, that  obtaining  money  or  goods  under  false  pretenses 
is  an  offense  against  the  laws  of  the  United  States  within 
the  meaning  of  the  statute  conferring  jurisdiction  upon  the 
United  States  Court  for  China,  and  that  an  American  cit- 
izen guilty  of  such  an  act  in  China  is  subject  to  trial  and 
punishment  by  this  Court.  Under  this  ruling,  therefore, 
it  is  necessary  for  us  to  look  not  only  into  the  Revised 
Statutes  of  the  United  States  but  into  the  laws  governing 


*  Biddle  v.  United  States,  ante,  p.  120. 
'30  U.  S.  Stats,  at  Large,  717,  Ch.  576. 


][88  I  EXTRATERRITORIAL  CASES. 

the  District  of  Columbia,  the  territories  and  the  several 
states  within  which  the  national  government  holds  lands 
over  which  it  exercises  exclusive  jurisdiction,  to  enable 
us  to  determine  if  vagrancy  has  been  made  an  offense 
against  the  United  States. 

We  find  that  section  151  of  the  Alaska  Criminal  Code 
defines  vagrancy  and  provides  for  its  punishment  and  that 
under  the  laws  of  most  of  the  states  vagrancy  is  a  criminal 
offense.  It  is  clear,  therefore,  that,  at  the  time  when  the 
Regulation  in  question  was  promulgated,  vagrancy  was  an 
offense  against  the  laws  of  the  United  States  within  the 
meaning  of  the  statute  conferring  jurisdiction  on  this  Court, 
that  there  was  no  deficiency  in  the  laws  of  the  United  States 
defining  the  crime  of  vagrancy,  and  that  consequently  the 
Minister  to  China  was  without  lawful  power  to  promulgate 
1  definition.  In  the  view  that  the  Court  takes  it  is  un- 
necessary for  present  purposes  to  go  further  but  it  must 
be  understood  that  we  do  not  declare  the  Regulation  invalid 
in  all  its  terms.  In  fact  the  Court  regards  it  as  entirely 
possible  that  the  Regulation  may  be  sustained  in  so  far  as 
it  fixes  the  penalty  for  vagrancy  in  this  jurisdiction.  In 
this  connection  the  provisions  of  section  4101  of  the  Revised 
Statutes,  relating  to  judicial  discretion  as  to  the  nature  and 
degree  of  penalties,  must  be  considered.  The  embarrass- 
ments attending  upon  the  administration  of  justice  in  both 
the  Consular  Courts  and  this  Court,  due  to  the  undeveloped 
state  of  the  law,  are  well  understood.  Until  the  law  is 
interpreted  contra  we  believe  that  the  Consular  Courts  will 
be  entirely  justified,  for  purposes  of  fixing  jurisdiction,  in 
adopting  the  penalties  named  in  this  Regulation. 

The  effect  of  the  Court  of  Appeals  decision  is  to  enlarge 
the  body  of  law  available  to  this  Court,  and  to  that  extent 
it  diminishes  deficiencies  theretofore  supposed  to  exist. 
The  circumstances  of  the  particular  case  did  not  appear 
to  the  appellate  Court  to  require  taking  the  additional 
step  of  indicating  what  principles  should  govern  in  the 
application  of  the  laws  referred  to,  the  statutes  of  the 
various  states  and  territories  having  considerable  diversity 
in  the  definition  of  criminal  offenses.  Consequently  the 
task  of  extracting  from  these  conflicting  provisions  of  law 


SEXTON  V.  UNITED  STATES,  NOV.  29,  190  9.      189 

that  which  is  available  to  and  binding  in  this  jurisdiction 
is  imposed  upon  this  Court  and  it  presents  questions  of 
unique  difficulty.  The  facts  of  the  case  at  bar  precipitate 
these  difficulties  in  a  marked  degree.'^ 

III. 

The  information  was  drawn  substantially  in  the  terms  of 
the  Regulation  which  we  have  been  discussing,  which  are 
also,  with  slight  variation,  substantially  those  found  in  the 
Alaska  statute.  The  variance  from  its  language  is  not  such 
as  to  lead  the  Court  to  doubt  the  legal  sufficiency  of  the 
information.  The  Court  is  of  the  opinion,  however,  that 
in  view  of  the  somewhat  conflicting  definitions  of  offenses 
and  crimes  in  the  general  body  of  laws  of  the  United 
States,  made  applicable  within  this  jurisdiction,  great  care 
should  be  exercised  in  drawing  complaints  and  informa- 
tions, both  in  the  Consular  Courts  and  in  this  Court.  Such 
complaints  and  informations,  if  based  upon  particular  stat- 
utes, should  be  made  to  conform  to  the  statutory  definition 
of  the  offenses  charged.  The  decision  of  the  Court  of 
Appeals  brings  into  this  jurisdiction  a  large  and  well  de- 
veloped body  of  law.  It  is  the  opinion  of  the  Court  that 
this  body  of  law  can  be  utilized  without  undue  embarrass- 
ment by  technical  obstacles  which,  thru  one  cause  or  another, 
have  arisen  in  jurisdictions  where  the  administration  of 
criminal  law  is  necessarily  more  diversified. 

Another  phase  of  the  defense  is  the  contention  that  the 
evidence  submitted  by  the  prosecution  was  insufficient  to 
sustain  the  charge  of  vagrancy.  A  critical  examination  of 
the  record  shows  that  it  establishes  by  satisfactory  evidence 
that  the  defendant  was  the  manager,  within  the  period 
stated  in  the  information,  of  the  "Alhambra,"  a  house  of 
entertainment,  a  gambling  house  and  a  house  of  assignation. 
Detective  Reeves  answered  in  the  negative  the  question : 
"Has  the  defendant  any  other  occupation  that  you  know 
of?"     Detective  Kennerly,  on  cross  examination,  testified 

®  These  difficulties  are  reduced  to  a  minimum  by  subsequent  deci- 
sions excluding  from  consideration  "the  statutes  of  the  various  states 
and  territories"  and  leaving  only  acts  of  Congress.  See  U.  S.  v.  Allen, 
post,  p.  311.     Ed. 


190  I  EXTRATERRITORIAL  CASES. 

that  he  did  not  know  whether  the  accused  had  any  other 
employment  than  manager  of  the  "Alhambra"  during  the 
period  stated  in  the  information.  Later  he  testified  that 
Sexton  had  no  visible  means  of  support,  but  admitted  that 
he  did  not  know  what  money  he  may  have  had,  and  that,  so 
far  as  he  knew,  he  may  have  had  other  income  than  his 
salary  as  manager  of  the  "Alhambra."  This  evidence  is 
negative  in  character  and  cannot  be  regarded  as  establish- 
ing the  allegation  that  the  defendant  had  no  other  employ- 
ment or  other  means  of  support. 

Considering  all  of  the  evidence,  it  seems  clear  to  the 
Court  that  this  prosecution  must  stand  or  fall  alone  on  that 
portion  of  it  which  establishes  the  fact  that  the  defendant's 
employment  was  that  of  manager  of  a  gambling  house.  Is 
such  fact  sufficient  for  a  conviction  of  the  offense  of 
vagrancy?  We  must  seek  for  a  definition  of  this  offense 
in  the  laws  of  the  United  States,  especially  in  those  sources 
of  law  which  the  Court  of  Appeals  has  declared  in  force  in 
China.  We  turn  first  to  the  Alaska  Code  where  the  follow- 
ing definition  of  the  crime  of  vagrancy  is  found : 

"Sec.  151.  That  all  idle  or  dissolute  persons  who  have  no  visible 
means  of  living,  or  lawful  occupation  or  employment  by  which  to 
earn  a  living;  all  able-bodied  persons  who  shall  be  found  begging 
the  means  of  support  in  public  places,  or  from  house  to  house,  or 
who  shall  procure  a  child  or  children  so  to  do;  all  persons  who  live 
in  houses  of  ill  repute,  shall  be  deemed  vagrants,  and  upon  con- 
viction thereof  shall  be  fined  not  less  than  twenty  dollars  nor  more 
than  two  hundred  and  fifty  dollars,  or  by  imprisonment  in  the  county 
jail  not  less  than  ten  nor  more  than  twenty-five  days  or  both,  in  the 
discretion  of  the  court." 

It  is  seen  that  by  this  statute  there  are  three  classes  of 
persons  who  shall  be  deemed  vagrants: 

1.  All  idle  or  dissolute  persons  who  have  no  visible  means 
of  living,  or  lawful  occupation  or  employment  by  which  to 
earn  a  living; 

2.  All  able-bodied  persons  who  shall  be  found  begging  in 
public  places,  or  from  house  to  house,  or  who  shall  procure 
a  child  or  children  so  to  do ; 

3.  All  persons  who  live  in  houses  of  ill  repute. 

It  is  quite  obvious  that  the  evidence  in  this  record  does 


SEXTON  V.  UNITED  STATES,  NOV.  2  9,  190  9.      191 

not  place  the  defendant  in  either  the  second  or  third  class. 
Does  it  establish  his  character  as  a  member  of  the  first 
class?  That  class  is  composed  of  "all  idle  or  dissolute  per- 
sons," such  as  "have  no  visible  means  of  living"  or  such 
as  have  no  "lawful  occupation  or  employment  by  which  to 
earn  a  living."  A  fact  necessary  to  fix  the  crime  of  va- 
grancy on  one  of  this  class  is  the  fact  of  being  an  "idle  or 
dissolute  perso7i."  This  is  essential.  The  prosecution  must 
also  show,  either  that  the  accused  has  "no  visible  means  of 
living"  or  no  "lawful  occupation  or  employment  by  which 
to  earn  a  living." 

Section  152  of  the  Alaska  Code  declares  in  very  broad 
terms  that  any  gambler  or  employee  of  a  gambling  house 
shall  be  held  guilty  of  a  misdemeanor  and,  on  conviction, 
shall  be  punished  by  a  fine  of  not  more  than  five  hundred 
dollars  and  possible  imprisonment  of  not  more  than  one 
year.  This,  of  course,  fixes  gambling  as  an  unlawful  occu- 
pation in  Alaska.  But  inasmuch  as  special  provision  is 
made  for  this  larger  offense  it  tends  at  least  to  raise  a 
doubt  as  to  whether  proof  of  that  single  fact  should  be 
properly  regarded  as  sufficient  to  establish  the  lesser  and 
minor  offense  of  vagrancy  in  the  same  body  of  law. 

Under  the  Alaska  Code  the  penalty  on  conviction  of 
vagrancy  is  a  fine  of  not  less  than  twenty  dollars  nor  more 
than  two  hundred  and  fifty  dollars,  or  by  imprisonment  in 
the  county  jail  of  not  less  than  ten  nor  more  than  twenty- 
five  days,  or  both,  in  the  discretion  of  the  court. 

The  general  rule  is  that  the  maximum  penalty  allowed 
by  the  statute  must  be  regarded  in  determining  the 
jurisdiction  of  the  court.  If  the  Alaska  statute  were 
strictly  followed  the  jurisdiction  of  the  Consular  Court  in 
the  present  case  would  have  to  be  denied,  since,  in  criminal 
cases,  jurisdiction  is  limited  to  case's  where  the  punishment 
cannot  exceed  a  fine  of  one  hundred  dollars  or  imprison- 
ment for  more  than  sixty  days.^ 

However,  the  Court  is  strongly  impressed  with  the  fact 
that  the  proof  in  this  case  being  limited  to  establishing  the 

'  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Larsje,  Pt.  I, 
Ch.  3934,  sec.  2. 


192  I  EXTRATERRITORIAL  CASES. 

defendant's  guilt  as  a  manager  of  a  gambling  house,  the 
latter  offense  being  provided  for  under  another  section  of 
the  same  code,  the  government  cannot  reasonably  elect  to 
proceed  under  the  vagrancy  statute,  in  which  the  mis- 
demeanor of  gambling  constitutes  only  an  element.  In 
addition  the  Court  feels  compelled  to  deduce  from  the 
various  definitions  of  vagrancy  found  in  the  several  states, 
all  more  or  less  developed  from  the  common  law  concept, 
such  a  definition  of  that  crime  as  is  not  consistent  with 
the  theory  that  gambling,  as  a  single  element,  can  be 
regarded  as  constituting  that  offense. 

Vagrancy  at  common  law  is  defined  by  Blackstone  ^  as 
the  act  of  idleness  and  vagabondage  committed  by  persons 

"whom  cur  ancient  statutes  describe  to  be  'such  as  wake  on  the 
night  and  sleep  on  the  day,  and  haunt  customable  taverns  and  ale- 
houses, and  routs  about:  and  no  man  wot  from  whence  they  come  ne 
whither  they  go'  or  such  as  are  more  particularly  described  by 
Statute  17  Geo.  II.  c.  5,  and  divided  into  three  classes,  idle  and 
disorderly  persons,  rogues  and  vagabonds  and  incorrigible  rogues." 

All  these,  says  Blackstone,  are  offenders  against  the  good 
order,  and  blemishes  in  the  government  of  any  kingdom, 
and  are  therefore  punished  by  the  statute  mentioned — idle 
and  disorderly  persons  with  one  month's  imprisonment  in 
the  house  of  correction;  rogues  and  vagabonds  with  whip- 
ping and  imprisonment  not  exceeding  six  months;  and 
incorrigible  rogues  with  the  like  discipline  and  confinement 
not  exceeding  two  years. 

Vagrancy  as  a  common  law  offense  was  distinguished 
from  disorderly  conduct  generally  by  the  Supreme  Court  of 
Michigan.-'  In  that  case  the  Court  said  that  a  provision  of 
the  Revised  Ordinances  of  Detroit 

"can  only  reach  such  cases  of  vagabondage  as  come  fairly  within 
the  common  law  meaning  of  the  word,  which  was  possibly  designed 
to  protect  the  public  from  expense,  quite  as  much  as  from  disorder." 

The  same  Court  held  that  vagrancy,  when  not  defined  by 
statute,  must  be  considered  such  vagabondage  as  fairly 
comes  within  the  common  law  meaning  of  the  word ;  and  that 


*  Commentaries,  IV,  169. 

'Re  May   (Mich.),  1  N.  W.,  1021. 


SEXTON  V.  UNITED  STATES,  NOV.  29,  1909.  193 

"to  make  such  going  about  vagrancy,  it  must  further  appear 
that  the  person  is  idle,  and  seeking  to  live  upon  the  charity  of  others, 
unwilling,  altho  able  to  do  so,  to  work  for  his  or  her  maintenance."  " 

It  will  be  observed  that  the  Alaska  Code  incorporates  the 
common  law  definition  of  vagrancy  and  further  specifies  that 

"all  able-bodied  persons  who  shall  be  found  begging  the  means  of 
support  in  public  places,  or  from  house  to  house,  or  who  shall  procure 
a  child  or  children  so  to  do;  all  persons  who  live  in  houses  of  ill 
repute,  shall  be  deemed  vagrants." 

The  language  of  these  two  sections  raises  the  question 
whether  such  provisions  do  not  exclude  such  acts  as  gam- 
bling or  disorderly  conduct  as  constituting  the  offense  of 
vagrancy. 

The  statutes  in  the  several  states,  modifying  the  common 
law  definition  of  vagrancy,  are  fairly  represented  by  the 
above  quoted  section  151  of  the  Alaska  Penal  Code." 
The  Massachusetts  law  ^-  includes  the  acts  specified  in 
the  Alaska  Code  but  distinguishes  tramps  and  refers  to 
sections  penalizing  tramps  more  severely  than  vagrants. 
The  New  York  statute  ^^  is  more  extensive  and  specifies 
additional  acts  of  the  same  nature  as  those  enumerated  in 
the  Alaska  Code,  separately  providing  penalties  for  tramps. 
The  Texas  Penal  Code  "  is  briefer  than  the  Massachusetts 
and  New  York  statutes  but  includes  "a  professional  gam- 
bler" and  "a  habitual  drunkard  who  abandons,  neglects  or 
refuses  to  aid  in  the  support  of  his  family."  None  of  the 
annotations  relates  to  gambling;  most  of  them  relate  to 
prostitution.  This  is  the  single  jurisdiction  in  which  we 
find  a  provision  that  a  "professional  gambler"  is  placed 
within  the  definition  of  vagrancy.  The  California  Penal 
Code  ^^  states  the  nature  of  the  offense  in  more  detail  than 
the  Alaska  Code ;  it  includes  also  common  drunkards,  runners 


^In  re  Jordan,  90  Mich.  3,  50  N.  W.  1087. 

"  This  section  was  taken  from  the  Laws  of  Oregon.  Hill,  Ann. 
Laws,  sec.  1958. 

'"  Revised  Laws,  1902,  Part  II,  p.   1796,  chap.  212,  sec.  59. 

"  Birdseye,  General  Laws,  III,  3914,  Code  Crim.  Proc,  sec.  887,  and 
subd.  9,  added  L.,  1900,  c.  281. 

"  Title  XI,  chap.  7,  Art.  41-3,  White,  Texas  Penal  Code,  Annotated, 
p.  251. 

"Sec.   647. 

14008  O.  W. IS 


194  I  EXTRATERRITORIAL  CASES. 

about  police  courts  and  persons  of  bad  reputation  loitering 
about  railway  stations  and  similar  public  places. 

Vagrancy  is  defined  in  its  common  law  significance  as 

"a  going  about  from  place  to  place  by  a  person  without  visible  means 
of  support,  who  is  idle,  and  who,  tho  able  to  work  for  his  or  her 
maintenance,  refuses  to  do  so,  but  lives  without  labour  or  on  the 
charity  of  others."  " 

And  it  is  further  said  that  statutes  in  the  United  States  do 
not  usually  set  forth  any  principle  by  which  vagrancy  may 
be  defined  but  give  extended  lists  of  various  descriptions 
of  persons  who  may  be  deemed  and  treated  as  vagrants. 

On  examination  of  the  foregoing  authorities  it  appears 
that  the  essentials  of  the  offense  of  vagrancy,  under  the 
laws  of  the  United  States  in  force  in  China,  are  as  follows : 

Vagrancy  is  the  idle  or  dissolute  wandering  about  within 
a  district  where  he  has  no  fixed  place  of  abode  of  a  sane, 
healthy,  adult  person,  who  has  no  obvious  means  of  honest 
livelihood  and  who  is  in  need  of  subsistence,  who  is  un- 
willing to  work  and  who  is,  or  is  likely  to  become,  a  public 
charge,  or  who  is  the  inmate  of  a  house  of  ill-fame  or  is 
engaged  in  soliciting  for  prostitution. 

The  cases  distinguish  from  the  class  of  vagrants  all 
persons  who  are  going  about  in  leisure  for  lawful  object's. 
The  Massachusetts  cases  have  also  held  that  "persons  who 
are  under  no  obligation  to  work  cannot  offend  against"  stat- 
utes penalizing  "idle  and  disorderly  persons,"  and  that  proof 
that  the  accused  possesses  no  independent  means  of  support 
and  is  able,  but  neglects  to  work,  is  usually  necessary.^^ 

In  all  of  the  jurisdictions  above  referred  to,  vagrancy 
is  dealt  with  in  a  summary  manner,  arrests  by  private 
persons  being  permitted  and  justices  of  the  peace  having 
authority  to  convict  without  formal  trial.  These  facts  show 
the  minor  character  of  the  offense.  The  Court  holds  that 
the  evidence  in  this  record  is  not  sufficient  to  establish  the 
crime  of  vagrancy  in  the  defendant. 

The  case  is  remanded  to  the  Consular  Cowt  with  direction 
that  the  defendant  he  discharged. 


"Am.  &  Eng.  Encyc.  of  Law  (2nd  ed.),  XXIX,  568. 
"Com.  V.  Tay,  170  Mass.  192,  48  N.  E.  1086;  Com.  v.  Dougherty, 
137  Mass.  245;   Com.  v.  Sullivan,  5  Allen    (Mass.)    511. 


UNITED  STATES   V.   FAULKNER,    JAN.    31,    1910.        195 
IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Frederick  T.  Faulkner. 

[Criminal  Cause  No.  35;  filed  January  31,  1910.] 

SYLLABUS. 
(By  the  Editor.) 

1.  EMBEZZLEMENT:    "LAWS  OF  THE   UNITED    STATES."     The   Acts   of 

Congress  which  define  and  penalize  embezzlement  in  the  District 
of  Columbia  and  Alaska  are  "laws  of  the  United  States"  with- 
in the  meaning  of  the  provision  extending  such  laws  over 
American  citizens   in   China. 

2.  Id.  :  Agent  or  Servant.     A  Legation  clerk  to  whom  government 

money  is  entrusted  by  the  official  in  charge  of  the  Legation  is 
the  "agent"  or  "servant"  of  such  official  within  the  meaning  of 
said  acts. 

3.  Id.  :    Evidence  examined  and  found  sufficient  to   show  that  such 

money  w^as  appropriated  by  said  clerk  to  his  own  use. 

Arthur  Bassett,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecu- 
tion. 

G.  F.  Curtis,  Esq.,  contra. 

Thayer,  J.: 

The  information  in  this  case  charges,  with  the  crime  of 
embezzlement,  the  defendant  who,  at  the  time,  was  em- 
ployed as  a  clerk  in  the  American  Legation  at  Peking.  He 
did  not  belong  to  the  class  of  employees  who  are  specifically 
provided  for  in  detail  in  the  annual  appropriation  bills 
passed  by  Congress  for  the  Diplomatic  and  Consular  Service. 
In  the  Act  of  March  2,  1909,  making  appropriation  for 
said  service,  the  sum  of  $65,000  is  appropriated  "for  the 
employment  of  necessary  clerks  at  the  embassies  and  le- 
gations." From  said  appropriation  the  Secretary  of  State 
makes  allotment  to  each  embassy  or  legation  respectively, 
of  sums  which  may  be  expended  for  cleik  or  clerks  and 
the  sum  of  $1,800  was  authorized  to  be  expended  for  a 
clerk  in  the  above  named  Legation.  The  authority  to 
select  and  appoint  the  clerk  to  be  thus  employed  was  left, 
without  material  restrictions,  to  the  head  of  the  Legation, 
who  could  also  specify  the  work  to  be  performed,  assign 


J^96  I  EXTRATERRITORIAL  CASES. 

to  said  clerk  or  clerks  any  kind  of  clerical  duty  and  ter- 
minate the  employment  at  any  time  at  his  discretion. 

The  testimony  presented  by  the  prosecution  has  not  been 
rebutted  by  the  defense  on  any  material  point.  The  prose- 
cution's witnesses  are  all  reputable  men  and  gave  their 
testimony  in  such  a  manner  as  left  no  doubt  in  the  Court's 
mind  of  its  truthfulness.  The  proof  establishes  beyond  a 
reasonable  doubt  the  following  facts : 

Henry  P.  Fletcher,  the  First  Secretary  of  the  American 
Legation  at  Peking,  has  been  thereof  Charge  d'affairs  ad 
interim  since  June,  1909.  In  the  early  part  of  November, 
1909,  a  bill  was  presented  to  the  said  Legation  by  the  Im- 
perial Chinese  Telegraph  Administration  for  telegraph 
service  rendered  prior  to  November  1,  1909.  The  account 
then  outstanding  was  $5,868.16  local  currency.  Mr. 
Fletcher  instructed  the  defendant  to  ascertain  what  amount 
in  U.  S.  currency  would  be  necessary  to  draw  in  a  draft  on 
the  Secretary  of  State  to  realize  sufficient  local  currency  to 
pay  said  account.  On  November  8,  1909,  the  defendant 
presented  a  memorandum  to  Mr.  Fletcher  from  the  Yoko- 
hama Specie  Bank,  Limited,  at  Peking,  indicating  that  a 
draft  for  $2,449,66,  U.  S.  currency,  would  realize  on  that 
date  $5,868.16  local  currency.  Thereafter  a  draft  on  the 
Secretary  of  State  for  $2,449.66,  U.  S.  currency,  was  pre- 
pared and  signed  by  the  said  Henry  P.  Fletcher  and  delivered 
by  him  to  the  defendant  with  instructions  to  negotiate  it 
and  with  the  proceeds  thereof  pay  the  above  mentioned 
account  of  the  Imperial  Chinese  Telegraph  Adminis- 
tration. The  defendant  received  the  said  draft  and 
on  November  16,  1909,  negotiated  it  at  the  Yokohama  Specie 
Bank,  Limited,  at  Peking,  and  received  from  the  said  bank 
the  proceeds  thereof  amounting  to  $5,858.68  local  currency. 

The  defendant  did  not  apply  said  sum  so  received  by  him, 
or  any  part  thereof,  to  the  payment  of  the  said  account  and 
has  not  accounted  therefor  in  any  way  to  the  said  Henry 
P.  Fletcher.  In  the  latter  part  of  November,  1909,  and  sub- 
sequent to  the  receipt  by  him  of  the  $5,858.68,  the  defend- 
ant applied  to  Mr.  Fletcher,  as  the  head  of  said  Legation, 
for  leave  of  absence  for  ten  days,  stating  that  he  desired 


UNITED   STATES    V.    FAULKNER,    JAN.    31,    1910.       197 

rest  and  recreation.  Mr.  Fletcher  then  asked  him  if  the 
accounts  of  the  Legation  were  in  proper  shape  and,  on 
being  informed  that  they  were,  granted  the  leave  of  ab- 
sence. The  defendant  informed  Mr.  Fletcher  that  he 
intended  to  go  to  Mongolia  and  said  that  if  it  were  desired 
to  communicate  with  him,  a  message  sent  to  Kalgan  in  care 
of  the  British-American  Tobacco  Company  would  reach  him. 
On  or  about  December  8,  1909,  a  bill  was  received  at  the 
American  Legation  at  Peking  from  the  Imperial  Chinese 
Telegraph  Administration  showing  that  the  bill  for 
$5,868.16  local  currency,  outstanding  at  the  end  of  October, 
1909,  had  not  been  paid.  Having  investigated  and  satis- 
fied himself  that  such  was  the  case,  Mr.  Fletcher  attempted 
to  communicate  with  the  defendant  at  Kalgan  but  was 
informed  that  he  had  not  been  there.  Upon  further  inves- 
tigation the  proof  showed  that  the  defendant  had  proceeded 
south,  that  he  had  been  seen  in  Shanghai  about  December  8, 
that  later  he  had  proceeded  to  Singapore,  and  that  later 
still  he  returned  north  and  was  arrested  by  the  United 
States  Marshal  at  the  port  of  Woosung. 

It  is  established  to  the  satisfaction  of  the  court  that 
Mr.  Fletcher  as  chief  ad  interim  of  the  Legation  was  charged 
by  law  with  the  sole  responsibility  for  the  procurement  and 
disbursement  of  public  funds  which  were  required  for  the 
payment  of  the  Legation  expenses.  He  could  not  delegate 
to  any  other  person  any  of  the  services  in  that  connection 
and,  if  he  saw  fit  to  use  the  services  of  any  other  person 
to  aid  him  in  the  performance  of  such  duty,  he  could 
not  be  relieved  in  any  way  of  responsibility  for  the  full 
discharge  thereof.  It  is  obvious  that  any  person  whom  he 
might  so  employ  would  become  his  personal  agent.  That 
the  defendant  fully  understood  the  nature  of  his  employment 
in  this  particular  transaction,  that  it  was  personal  and 
not  in  any  way  associated  with  the  duties  as  a  clerk  in  the 
Legation,  appears  in  the  affidavit  filed  in  this  record  in 
support  of  a  motion  for  continuance  in  which  he  states 

"That  it  was  not  the  duty  of  the  said  Frederick  T.  Faulkner,  by- 
virtue  of  his  office  as  clerk  in  the  American  Legation,  to  have 
charge  of  the  finances   of  the  said   Legation   nor   to   negotiate   and 


]^98  I  EXTRATERRITORIAL  CASES. 

sell  drafts  to  any  local  bank  in  Peking  drawn  upon  the  Secretary  of 
State." 

It  follows,  therefore,  that  the  $5,858.68  local  currency, 
referred  to,  was  received  by  the  defendant  from  the  Yoko- 
hama Specie  Bank,  Limited,  at  Peking,  as  the  agent  or 
servant  of  Henry  P.  Fletcher.  It  is  not  necessary  at  this 
time  to  discuss  who  was  the  owner  of  the  money  thus  de- 
livered to  him.  It  is  sufficient  to  observe  that  it  was  not 
the  money  of  the  defendant  but  the  property  of  another 
which  came  into  his  possession  while  he  was  acting  as 
Mr.  Fletcher's  agent  and  was  received  for  and  on  account 
of  Mr.  Fletcher.  He  had  no  property  in  said  money  and 
could  lawfully  deal  with  it  in  accordance  only  with  the 
instructions  of  his  principal  or  employer. 

There  can  be  no  question  that  the  moneys  referred  to 
were  by  the  defendant  converted  to  his  own  use.  In  re- 
sponse to  an  inquiry  from  Mr.  Fletcher  he  had  stated  that 
the  accounts  of  the  Legation  were  in  proper  shape  when 
he  must  have  known  that  the  particular  account  in  ques- 
tion which  he  had  been  instructed  to  pay  was  still  unsettled 
and  that  the  money  which  he  had  received  from  the  Yoko- 
hama Specie  Bank,  Limited,  had  neither  been  applied  to 
the  payment  of  this  bill  in  accordance  with  instructions  nor 
been  accounted  for  by  him  to  Mr.  Fletcher.  Under  the 
pretence  of  going  to  Kalgan,  where  he  was  easily  accessible 
to  Peking,  he  went  to  Shanghai  and  continued  on  to 
Singapore.  Thus  when  the  bill  of  the  Imperial  Chinese 
Telegraph  Administration  was  presented  in  December,  dis- 
closing that  the  outstanding  account  for  October  had  not 
been  paid,  the  defendant  was  neither  in  Peking  nor  in 
Kalgan,  but  was  beyond  the  jurisdiction,  several  thousand 
miles  away. 

It  remains  to  consider  only  whether  embezzlement  is  a 
crime  within  this  jurisdiction.  A  demurrer  was  filed  to  the 
information  on  the  ground  that  embezzlement  is  a  statutory 
and  not  a  common  law  offense,  that  there  is  no  law  of  the 
United  States  which  makes  the  embezzlement  of  private 
property  a  crime  and  that  therefore  the  embezzlement  of 


UNITED  STATES  V.  FAULKNER,    JAN.    31,    1910.        199 

private  property  by  an  American  citizen  in  China  does  not 
constitute  an  offense  of  which  this  Court  can  take  cogni- 
zance. Other  grounds  were  assigned  but  are  not  regarded 
as  requiring  discussion. 

It  is  true  that  there  is  no  general  statute  of  the  United 
States  which  declares  that  the  misappropriation  of  private 
property  shall  constitute  embezzlement.  The  same  is  true 
as  well  respecting  the  misappropriation  of  public  moneys, 
excepting  only  certain  classes  of  public  officers  who  are 
charged  by  law  with  the  custody,  disbursement  or  safe 
keeping  of  public  funds  of  the  United  States.^  But  this 
does  not  exhaust  the  body  of  law  available  to  this  court. 
Following  the  Court  of  Appeals  -  we  have  to  ascertain 
whether  "in  legislating  for  territory  over  which  the  United 
States  exercises  exclusive  legislative  jurisdiction"  Congress 
has  made  the  act  of  misappropriation  of  moneys  by  an  agent 
or  servant  a  crime.  Paraphrasing  the  language  used  in  the 
case  last  cited  and  substituting  embezzlement  for  obtaining 
money  under  false  pretenses,  we  find  that  on  March  3,  1899, 
Congress  declared  ^  that  the  fraudulent  conversion  to  his 
own  use  of  any  money,  property  or  thing  of  another,  by  any 
officer,  agent,  clerk,  employee,  or  servant  of  any  private 
person  or  persons,  constitutes  embezzlement,  and  that  the 
act*  of  March  3,  1901,  is  practically  identical  therewith. 
It  does  not  appear  that  resort  to  the  laws  of  any  state  is 
necessary  since  these  acts  define  the  crime  of  embezzlement 
and  are  "laws  of  the  United  States"  ^  specifically  extended 
to  the  extraterritorial  jurisdiction  of  China. 

We  therefore  find  that  embezzlement  is  a  crime  within 
this  jurisdiction,  and  that  the  facts  established  by  the  tes- 
timony presented  in  this  case  prove  beyond  a  reasonable 
doubt  that  the  defendant  is  guilty  thereof. 

On  February  1,  1910,  the  Court  passed  sentence  of  five 
years'  imprisonment. 


'U.  S.  Rev.  Stats,  sees.  5488-5494. 

*  Biddle  v.  U.  S.,  ante,  p.  120. 

*30  U.  S.  Stats,  at  Large,  Sess.  Ill,  Ch.  429,  tit.  I,  see.  46. 

*31  U.   S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  834. 

'  U.  S.  Rev.  Stats.,  sec.  4086. 


200  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Chiang  Zung  Match  Factory  Corporation  v.  Yek  Tong 
Lin  Fire  and  Marine  Insurance  Company,  Limited. 

[Civil  Action  No.  78.] 

SYLLABUS. 
(By  the  Editor.) 

1.  PLEADING:    DENIAL  of  a  stipulation  set  forth  in  the  petition  can- 

not be  applied  to  any  other  stipulation. 

2.  Id.  :  Evidence  and  particulars  need  not  be  pleaded. 

3.  ARBITRATION   AND   AWARD:    CONFLICT   OF    LAWS:    IN   AN    EXTRA- 

TERRITORIAL Court  an  agreement  to  arbitrate  must  be  construed 
according  to  the  law  of  defendant's  nationality. 

4.  Id.  :   Revocation.     Under  American  law,  such  an  agreement  may 

be  revoked  at  any  time  prior  to  publication  of  the  award. 

5.  Id.  :  Id.  :   Notice  of  such  intention  need  not  be  given  the  adverse 

party;  it  is  sufficient  if  given  to  the  arbit.-ators. 

6.  Id.  :   Id.  :   Id.  :   Form.     No  special  form  of  such  notice  is  required 

tho  it  must  be  written  if  the  submission  was. 

J.  H.  Teesdale,  Esq.,  and  W.  S.  Fleming,  Esq.,  for  plaintiff. 
Arthur  Bassett,  Esq.,  for  defendant. 

on  demurrer  to  answer. 


[Filed  April  4,  1910.] 

Thayer,  J.: 

This  is  an  action  in  which  the  plaintiff  seeks  judgment 
in  an  amount  assessed  in  an  arbitration  proceeding  to  which 
he  and  the  defendant  voluntarily  submitted.  The  plaintiff 
is  of  Chinese  nationality.  The  defendant  is  a  fire  insurance 
company  incorporated  under  the  laws  of  the  Philippine 
Islands  and  therefore  of  American  nationality.  The  in- 
surance company  had  issued  to  the  plaintiff  three  insurance 
policies.  A  loss  was  sustained  on  the  property  insured. 
The  insurance  company  refused  to  admit  liability  in  the 
amount  of  the  claim.  The  parties  then  agreed  to  arbitrate. 
The  agreement  of  submission  to  arbitration  was  in  writing 
and  it  provided  that  each  of  the  parties  should  select  one 
arbitrator  and  that  the  two  thus  selected  should  choose  an 
umpire.  At  an  early  session  of  the  board  of  arbitration 
counsel  of  the  respective  parties  entered  into  an  oral  stip- 


CHIANG  ZUNG  CORP.  V.  INS.  CO.,  APR.  4,  1910.         201 

ulation  by  which  the  agreement  of  submission  was  ma- 
terially amended. 

Counsel  for  plaintiff  has  filed  a  demurrer  to  the  answer 
on  ground  of  uncertainty.  The  argument  in  support  of  the 
demurrer  cited  the  well-known  rules  of  code  pleading  ap- 
plicable generally  in  jurisdictions  within  the  United  States. 
The  undeveloped  condition  of  practice  and  pleading  in  this 
jurisdiction  does  not,  however,  warrant  strict  construction 
of  such  rules.  Thruout  the  necessary  period  of  its  organiza- 
tion this  Court  has  been,  and  will  continue  to  be,  consistently 
disposed  to  a  liberal  view  with  respect  to  formality  of 
pleadings.  In  the  present  instance  the  answer  admits  all 
paragraphs  of  the  petition  excepting  6,  7  and  8,  which  are 
denied  in  terms.  But  the  answer  goes  on  to  say  that  de- 
fendant is  informed  and  believes 

"that  counsel  for  the  defendant  did  stipulate  that  certain  changes 
should  be  made  as  to  the  procedure  in  the  said  arbitration  and  denies 
that  the  said  paragraphs  numbered  6,  7  and  8,  correctly  set  out  said 
stipulations.  And  the  defendant  further  says  that  before  the  date 
of  the  final  award  the  said  defendant  withdrew  from  the  said  ar- 
bitration, refused  to  attend  the  heai'ing  before  the  said  arbitrators 
and  umpire  and  revoked  the  said  submission  as  altered  by  the  said 
stipulation." 

The  Court  interprets  the  answer  as  directly  traversing 
said  paragraphs.  It  denies  that  the  specific  stipulation  re- 
ferred to  in  the  petition  was  made,  but  it  must  not  be  taken 
as  denying  a  different  stipulation.  The  defendant  is  not 
bound  to  set  forth  the  differences  of  the  latter  stipulation 
from  the  former.  The  plaintiff  himself  has  not  particular- 
ized as  to  the  stipulation  he  relies  upon.  In  fact  there  are 
no  allegations  as  to  the  contents  of  any  stipulations  what- 
ever, whether  written  or  oral.  The  stipulations  would 
naturally  be  a  subject  of  testimony.  It  is  not  necessary  to 
set  forth  in  the  pleadings  the  particulars  of  the  stipulation. 

In  the  last  paragraph  of  its  answer  defendant  avers  that 
before  the  date  of  the  final  award  it  withdrew  from  the 
arbitration.  It  appears  to  the  Court  that  if  this  averment 
is  sustained  it  will  be  fatal  to  the  petition.  Plaintiff  thus 
has  notice  of  the  character  of  the  defense.     The  demurrer  is 

OVERRULED. 


202  I  EXTRATERRITORIAL  CASES. 

ON  THE  MERITS. 
[Filed  April  18,  1910.] 

Thayer,  /.   {After  stating  the  facts)  : 

The  date  on  or  before  which  an  award  was  to  be  made 
was  waived  and  it  was  stipulated  that  the  arbitrators,  and 
the  umpire  if  necessary,  should  first  consider  and  determine 
the  question  of  the  liability  of  the  insurance  company  under 
its  several  policies  and,  second,  in  the  event  that  the  in- 
surance company  was  found  liable,  that  the  arbitrators, 
and  the  umpire  if  necessary,  should  proceed  to  determine 
the  amount  of  such  liability. 

Proceedings  under  the  amended  stipulation  resulted  in 
a  disagreement  between  the  arbitrators  respecting  the 
liability  of  the  insurance  company.  The  question,  being 
referred  to  the  umpire,  was  decided  adversely  to  the  in- 
surance company  on  one  of  the  policies.  It  is  the  defend- 
ant's contention  that,  at  this  stage  of  the  proceedings  and 
before  the  arbitrators  and  the  umpire  had  taken  up  for 
consideration,  under  the  amended  submission,  the  question 
of  the  amount  in  which  said  insurance  company  was  liable, 
the  defendant  revoked  the  agreement  of  submission. 

In  the  course  of  trial  it  has  developed  that  counsel  for 
the  Chinese  plaintiff  and  counsel  for  the  American  defendant 
were  both  of  British  nationality.  The  arbitrators  appear 
also  to  have  been  British  and  the  umpire  chosen  by  them 
was  the  Registrar  of  the  British  Supreme  Court  for  China. 
The  arbitration  thus  proceeded  under  the  atmosphere  of 
English  law  notwithstanding  the  fact  that  neither  of  the 
parties  was  of  British  nationality.  In  the  trial  before  this 
court  the  plaintiff  has  been  in  part  represented  by  associate 
American  counsel  and  the  counsel  for  the  defendant  was 
also  American.  Mention  of  these  facts  seems  to  be  neces- 
sary in  order  to  have  a  proper  understanding  of  the  inci- 
dents in  this,  cause.  Counsel  originally  engaged  by  both 
parties  appear  to  have  assumed  that  the  proceedings  under 
the  agreement  of  submission  to  arbitration  would  follow 
the  rules  of  English  law  and  that  the  agreement  itself  and 
the  rights  of  the  parties  thereunder  would  be  interpreted 
and  administered  in  accordance  with  said  law.     This  was 


CHIANG  ZUNG  CORP.  V.  INS.  CO.,  APRIL  18,  1910.       203 

doubly  erroneous.  The  defendant  being  of  American  na- 
tionality it  necessarily  follows  that  the  adjudication  must 
be  in  harmony  with  American  law. 

Upon  the  evidence  in  the  record  the  Court  is  well  satis- 
fied that  the  defendant  insurance  company  intended  to 
revoke  the  agreement  for  the  submission  at  the  time  in  the 
proceedings  thereunder  when  the  umpire  declared  the  liabil- 
ity of  the  insurance  company  under  one  of  its  policies.  It 
appears  from  the  statements  of  British  counsel  in  argument 
that  the  English  statutes  do  not  admit  of  the  revocation 
of  an  agreement  of  submission  except  by  consent  of  both 
parties  or  by  order  of  court.  It  is  the  common  law  rule, 
applicable  in  this  court,  that  either  party  to  a  voluntary 
agreement  of  submission  to  arbitration  may  revoke  said 
agreement  at  any  time  prior  to  the  publication  of  the  final 
award.  This  rule  is  followed  and  confirmed  in  many  Amer- 
ican jurisdictions  and  stands  as  a  controlling  rule  except  in 
such  as  have  by  statute  provided  to  the  contrary.^  There- 
fore, at  the  time  stated,  it  was  permissible  for  either  of  the 
parties  to  have  revoked  the  agreement  of  submission. 

It  will  now  be  convenient  to  consider  whether  or  not  the 
defendant  insurance  company  disclosed  its  intent  to  re- 
voke this  agreement  of  submission  sufficiently  to  effect  its 
revocation.  It  is  in  evidence  that  the  defendant  instructed 
its  counsel  at  an  appropriate  time  that  it  would  not  proceed 
further  with  said  arbitration.  These  instructions  were  in 
writing  and  clearly  defined  the  intent  and  purpose  of  the 
insurance  company  and  they  also  instructed  counsel  to  give 
notice  of  such  intention  to  the  other  parties  to  the  said 
proceedings.  Said  letter  appears  in  the  record  and  also 
one  from  the  defendant  insurance  company's  counsel  ac- 
knowledging its  receipt  and  advising  them — "we  have  ac- 
cordingly notified  the  assured's  solicitor  and  the  arbitrators 
of  your  intention  herein."  The  counsel  who  acted  for  the 
insurance  company  in  the  arbitration  proceedings  appeared 
as  a  witness  in  this  case  on  behalf  of  the  plaintiff.  He  states 
that  the  action  taken  by  his  client  was  against  his  advice, 
that  he  did  not  then  believe  that  the  insurance  company 


^  See  Corpus  Juris,  V,  53.     Ed. 


204  I  EXTRATERRITORIAL  CASES. 

had  the  legal  right  to  revoke  the  said  agreement  and  that 
he  considered  that  his  client  was  absolutely  wrong  both 
morally  and  legally.  However,  the  evidence  shows  both 
from  his  own  testimony  and  from  the  testimony  of  the 
umpire,  that  the  defendant  communicated  with  the  umpire 
and  notified  him  that  his  client  did  not  propose  to  proceed 
further  with  the  arbitration.  The  umpire  who  was  also 
a  witness  in  the  case  confirms  this  statement.     He  testified : 

"Mr.  Ellis  said  that  his  client  refused  to  have  anything  to  do 
further  with  the  arbitration  and  that  he  would  not  be  there  and 
attend  the  sittings." 

It  is  not  satisfactorily  shown  that  notice  was  served  by 
the  defendant's  counsel  upon  plaintiff"'s.  In  fact  Mr.  Tees- 
dale,  counsel  of  record  for  the  plaintiff  in  this  case,  testifies 
that  he  never  received  any  such  notice.  But  no  rule  of  law 
has  been  found  which  makes  it  essential,  in  order  to  revoke 
an  agreement  to  arbitrate,  that  specific  notice  be  given  to 
the  other  party  of  such  intention.  It  is  essential,  however, 
in  order  to  make  a  revocation  complete,  that  notice  thereof 
be  given  to  the  arbitrators  ^  except  in  certain  well-defined 
cases.  Neither  is  it  necessary  to  the  validity  of  the  revo- 
cation that  it  should  be  in  any  special  form;  it  is  sufficient 
if  the  intention  to  revoke  is  clearly  expressed.^  It  is  held 
in  many  cases  that  it  may  be  made  even  by  parol.  Upon 
the  evidence  the  Court  is  satisfied  that  the  intent  of  the 
defendant  to  revoke  the  submission  to  arbitration  was  suffi- 
ciently disclosed  to  the  umpire  and  the  arbitrators. 

It  is  a  well  recognized  rule  that  the  revocation  must  be 
equal  in  dignity  with  the  agreement  for  submission,  that  is 
to  say,  if  the  submission  was  in  writing,  the  notice  of 
the  revocation  must  be  in  writing.*  In  this  case  the  orig- 
inal submission  was  in  writing  but  subsequently  it  was 
amended  in  several  respects  by  oral  stipulation.  The  effect 
of  such  oral  stipulation  cannot  be  otherwise  considered  than 
as  a  new  agreement  which  must  be  classified  as  an  oral  one 
subject  to  revocation  by  oral  notice. 

The  Court  finds: 

1.  That  the  defendant  intended  to  revoke  the  agreement 

=  Id.,  58.  ^Id.,  57.  *Id. 


KATZ  ET  AL.  V.   BARKOVITCH,   JUNE   8,   1910.  205 

of  submission  at  the  time  immediately  following  the  finding 
of  the  umpire  that  the  defendant  was  liable  on  one  of  its 
policies. 

2.  That  the  oral  notice  actually  given  by  the  defendant 
was  sufficient. 

The  effect  of  revocation  is  to  vitiate  any  subsequent  pro- 
ceedings by  the  arbitrators.  Judgment  is  therefore  ren- 
dered in  favor  of  the  defendant  and  plaintiff's  petition  is 
dismissed  with  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Maurice  Katz  et  al.,  Appellant,  v.  H.  Barkovitch, 
Appellee. 

[Civil  Action  No.  82;  filed  June  8,  1910.] 

SYLLABUS. 
(By  the  Editor.) 

APPEALS  from  the  Consular  Courts  to  this  Court  cannot  be  perfected 
without  filing  the  petition  setting  forth  the  reasons  as  required 
by  sec.  41  of  the  Court  Regulations. 

George  F.  Curtis,  Esq.,  for  appellant. 
W.  S.  Fleming,  Esq.,  for  appellee. 

Thayer,  J.: 

This  is  an  appeal  from  a  judgment  of  the  Consular  Court 
at  Shanghai  where  judgment  was  rendered  on  May  7,  1910, 
against  the  defendants  there  in  the  amount  of  $700.00  local 
currency,  with  costs.  On  May  9,  (May  8  being  Sunday), 
defendants'  counsel  filed  in  the  Consular  Court  a  petition 
for  issuance  of  writ  of  error  out  of  this  Court,  reciting  that 
certain  errors  had  been  committed  to  the  prejudice  of  the 
defendants,  concluding  said  petition  with  the  statement 
"all  of  which  will  more  in  detail  appear  from  the  assign- 
ment of  errors  which  is  filed  with  this  petition."  On  the 
same  date  counsel  also  filed  in  the  Consular  Court  a  docu- 
ment entitled  "Petition  for  Writ  of  Appeal."  No  assign- 
ment of  errors  or  statement  of  grounds  of  appeal  appears 
attached  to  either  of  these  petitions.     On  May  13,  security 


206  I  EXTRATERRITORIAL  CASES. 

for  judgment  and  costs  having  been  deposited,  the  trial 
judge  allowed  the  appeal. 

On  May  27,  the  transcript  of  record  was  received  in  the 
office  of  the  clerk  of  this  court  with  a  certificate  by  the 
clerk  of  the  Consular  Court  as  follows : 

"I,  ...  do  hereby  certify  the  foregoing  transcript  to  be  a 
full,  true  and  correct  copy  of  the  docket  entries  in  the  above  entitled 
cause;  and  that,  except  the  transcript  of  the  evidence  and  defendants' 
Exhibit  "M,"  the  same,  together  w^ith  the  exhibits,  constitute  the 
transcript  of  the  record  herein  upon  appeal  to  the  United  States 
Court  for  China.  And  I  do  hereby  further  certify  that  altho  there- 
unto notified  so  to  do,  the  defendants  have  failed  and  neglected  to 
file  w^ith  this  Court  the  stenographer's  transcript  of  the  evidence  and 
defendants'  Exhibit  "M,"  v^hich  was  w^ithdrawn  from  the  files  by 
the   defendants     .     .     ." 

The  conditions  upon  which  appeals  may  be  made  from 
the  Consular  Courts  include  the  following: 

"Within  five  days  after  judgment,  the  appellant  must  set  forth 
his  reasons  by  petition  filed  with  the  consul,  which  shall  be  transmit- 
ted as  soon  as  may  be  to  the  Minister,  with  a  copy  of  docket  entries 
and  of  all  papers  in  the  case."  ^ 

The  provision  that  "appellant  must  set  forth  his  reasons" 
within  five  days  after  judgment,  is  mandatory  and  cannot 
be  construed  otherwise  than  as  a  requirement  that  within 
the  time  stated  the  appellant  must  file  in  the  Consular 
Court  a  statement  of  his  grounds  of  appeal. 

Counsel  for  the  appellee  has  submitted  a  motion  for 
the  dismissal  of  this  appeal  on  the  ground  stated  and  also 
on  other  grounds  to  which  it  is  unnecessary  to  refer.  The 
regulation  referred  to  is  in  harmony  with  American  pro- 
cedure 2  and  so  plain  that  a  lajnman  could  not  misunderstand 
it.  Having  failed  to  comply  with  its  simple  requirements 
the  right  of  appeal  was  lost  and  it  should  not  have  been 
allowed. 

The  motion  is  considered  as  a  motion  to  docket  and  dis- 
miss and,  for  reasons  stated,  it  is  granted,  and  the  appeal 
is  dismissed.  An  order  will  be  entered  requiring  appellants 
to  pay  into  this  Court  the  proper  fees  and  costs  and  re- 

*  Consular  Court  Regulations  (1864),  sec.  41. 
-  Corpus  Juris,  III,  1328  et  seq.     Ed. 


UNITED   STATES   V.    HADLEY,    JUNE    17,    1910.  207 

manding  in  due  order  the  transcript  of  record  to  the  Con- 
sular Court  for  further  appropriate  proceedings  therein. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  James  B.  Hadley. 

[Criminal  Cause  No.  37;  filed  June  17,  1910.] 

SYLLABUS. 

(By  the  Editor.) 

1.  GAMBLING.     Section  865  of  the  Act  of  Congress  of  March  3,  1901, 

prohibiting  the  keeping  and  use  of  gambling  devices,  applied. 

2.  Id.  :  Agency.     Said  section  is  infringed  by  one  who  acts  as  agent 

or  servant  of  the  owner  of  such  device. 

3.  Id.  :  Id.  :  Evidence  reviewed  and  found  sufficient  to  show  that  the 

accused  had  so  acted. 

W.  S.  Fleming,  Special  Counsel  for  the  United  States. 
F.  M.  Brooks,  for  the  defendant. 

Thayer,  J.: 

A  criminal  information,  filed  by  the  Special  Counsel  for 
the  United  States,  charges  that  on  June  7,  1910,  in  the 
district  of  Shanghai  and  Empire  of  China  at  the  premises 
known  as  Number  9,  Sicawei  Road  the  defendant  did  set 
up  and  keep  a  gambling  device  commonly  called  roulette 
and  which  was  then  and  there  played  for  money.  The 
defendant  enters  a  plea  of  not  guilty. 

The  evidence  establishes  beyond  reasonable  doubt  that 
the  offense  charged  was  actually  committed  at  the  time 
and  at  the  place  charged.  The  "premises  known  as  Num- 
ber 9,  Sicawei  Road"  are  also  spoken  of  and  identified 
as  "The  Alhambra"  and  are  described  in  the  testimony 
as  of  two  stories.  On  the  first  floor  or  story  are  verandas 
and  several  rooms  used  for  entertainment,  reception  and 
bar-rooms.  A  stairway  leads  from  the  first  to  the  second 
floor  and  the  foot  of  it  is  separated  from  the  rooms  of  the 
first  floor  by  an  iron  grill  with  a  door  to  which  is  attached 
a  notice  "For  members  only,"  and  access  to  the  second  story 
appears  to  be  controlled  by  that  door.     The  gambling  device 


208  I  EXTRATERRITORIAL  CASES. 

specified  in  the  information  and  proved  to  have  been  oper- 
ated on  June  7,  1910,  was  located  on  the  second  floor  of 
said  premises. 

These  facts,  together  with  other  testimony  in  the  record, 
satisfy  the  Court  that  these  premises  were  deliberately  and 
skilfully  arranged  to  enable  public  gambling  to  be  operated 
and  pursued  under  such  conditions  as  would  be  likely  to  in- 
sure parties  interested  against  observation  by  officers  of  the 
law  or  by  other  persons  whom  they  might  regard  as  inim- 
ical to  such  proceedings.  They  illustrate  old  and  familiar 
methods  a!dopted  from  time  immemorial  by  professional 
gambling  houses  whose  owners  or  operators  fear  or  believe 
that  they  are  engaging  in  a  prohibited  business  and  recog- 
nize the  necessity  of  making  it  difficult,  if  not  impossible,  for 
the  officers  of  the  law  to  obtain  direct  evidence  of  their  pro- 
ceedings. It  is  noticeable  that  the  provisions  made  for  the 
exclusion  of  the  second  floor  of  the  premises  in  this  case  were 
notoriously  public.  It  is  clearly  established  that  the  defend- 
ant was,  on  the  night  in  question,  and  at  other  times,  in  cus- 
tody of  the  first  floor  of  said  premises  and  that  on  the  date 
specified  in  the  information  he  allowed  W.  D.  Miller,  who 
testified  in  this  record,  to  pass  thru  the  door  in  said  grill  and 
reach  the  stairway  leading  to  the  second  floor. 

Defendant  in  his  testimony  stated  that  he  had  only  two 
keys  in  his  possession  neither  of  which  was  the  key  of  this 
door.  The  Court  attaches  no  weight  to  said  testimony  for 
reasons  hereinafter  stated.  W.  D.  Miller's  testimony  on 
this  point  is  as  follows : 

"Q.  Where  was  Mr.  Hadley  on  this  occasion,  the  evening  of  the 
seventh  of  June  of  this  year? 

A.  He  was  sitting  at  a  table  playing  cards  when  I  first  arrived 
there. 

Q.  Downstairs? 

A.  Downstairs. 

Q.  What  did  you  do? 

A.  I  went  over  and  spoke  to  him.  I  had  met  him  previous  to 
that.  I  spoke  to  him,  and  said,  or  we  stepped  up  and  had  a  drink 
together  and  we  talked  for  a  little  while  and  then  I  left  him  and  went 
into  the  hall  and  then  over  to  the  iron  grill  intending  to  go  on  up- 
stairs, but  I  found  the  door  locked. 

Q.  Was  there  a  sign  on  the  iron  grill? 

A.  Yes,  sir;  "For  members  only." 


UNITED  STATES  V.  HADLEY,  JUNE  17,  1910.  209 

Q,  Right  at  the  cage? 

A.  Yes,  sir.  I  intended  to  go  up  but  I  found  the  door  locked  and 
a  Chinaman  standing  there,  a  Chinaman  leaning  on  the  door  or 
against  the  door,  and  Mr.  Hadley  stepped  up  to  the  doorway  in  the 
iron  grill  with  the  keys  and  opened  the  door  and  I  went  upstairs. 

Q.  Hadley  unlocked  the  door  in  the  iron  grill  for  you? 

A.  Yes,  sir;  and  pushed  the  door  to  after  I  went  in. 

Q.  Did  he  close  the  door  when  you  came  down? 

A.  Yes,  sir." 

On  more  than  one  occasion  the  defendant  excluded  mem- 
bers of  the  Shanghai  municipal  police.  The  defendant  tes- 
tifies that  his  duties  were  those  of  a  peace  officer  only  and 
were  limited  to  the  first  floor  of  the  premises;  that  he  was 
a  paid  servant  for  that  purpose  only  and  that  his  employer 
was  one  Mr.  Nerriz,  a  French  subject.  But  the  defendant 
told  detective-sergeant  McDonald  and  constable  Wilson  that 
he  was  in  general  supervision  of  the  place.  His  bearing 
on  the  stand  was  not  such  as  to  impress  the  Court  that  he 
was  telling  the  whole  truth  and  his  testimony  is  entitled  to 
very  slight  weight  on  any  points  wherein  it  is  contradicted. 
He  made  various  statements  as  to  his  powers  inconsistent 
with  the  limited  authority  to  which  he  swears.  In  view  of 
the  other  evidence,  his  testimony  that  he  did  not  know  that 
gambling  was  taking  place  on  the  second  floor  is  so  im- 
probable as  to  justify  the  Court  in  regarding  it  as  wilful 
untruth.  It  aff'ects  the  credibility  of  defendant  respecting 
his  whole  testimony  and  his  is  the  only  testimony  for  the 
defense. 

In  the  very  nature  of  this  class  of  cases  direct  and  ab- 
solutely conclusive  proof  is  usually  impossible.  The  cir- 
cumstances surrounding  a  particular  case  as  disclosed  in  the 
testimony,  may  be  such  as  to  satisfy  the  Court  or  the  jury, 
beyond  reasonable  doubt,  of  the  guilt  of  an  accused  person, 
altho  direct  and  conclusive  proof  has  not  been  submitted. 
The  Court  is  satisfied  beyond  a  reasonable  doubt  that  the 
defendant  was  a  part  of  the  general  gambling  outfit  on  the 
premises  specified.  Upon  this  state  of  facts  the  Court  must 
determine  the  guilt  or  innocence  of  the  defendant. 

It  has  been  settled  that  the  laws  enacted  by  Congress  for 
the  District  of  Columbia,  at  least  so  far  as  they  relate  to  the 

1400R  O.  W. 14 


210  I   EXTRATERRITORIAL  CASES. 

definition  of  criminal  offenses,  are  operative  in  this  juris- 
diction.^    One  of  their  provisions  reads  as  follows: 

"Whoever  shall  in  the  District  set  up  or  keep  any  gaming  table, 
or  any  house,  vessel,  or  place,  on  land  or  water,  for  the  purpose  of 
gaming,  or  gambling  device  commonly  called  ABC,  faro  bank,  E  0, 
roulette,  equality,  keno,  thimble,  or  little  joker,  or  any  kind  of  gam- 
ing table  or  gambling  device  adapted,  devised,  and  designed  for  the 
purpose  of  playing  any  game  of  chance  for  money  or  property,  or 
shall  induce,  entice,  and  permit  any  person  to  bet  or  play  at  or  upon 
any  such  gaming  table  or  gambling  device,  or  on  the  side  of  or  against 
the  keeper  thereof,  shall  be  punished  by  imprisonment  for  a  term  of 
not  more  than  five  years.'" 

It  will  be  observed  that  the  persons  who  are  made  subject 
to  the  penalties  of  that  section  are  those  who  shall  either 
"set  up  or  keep  any  gaming  table,"  "or  shall  induce,  entice, 
and  permit"  any  person  to  bet  or  play  at  or  upon  any  gam- 
ing table.  There  are  several  sections  of  the  code  of  the 
District  of  Columbia,  besides  the  one  quoted,  relating 
to  the  subject  matter  of  gambling  and  one  ^  of  them 
provides,  among  other  things,  that  the  court  shall  construe 
those  sections  liberally  "so  as  to  prevent  the  mischief  in- 
tended to  be  guarded  against,"  But  the  language  of  the 
section  is  in  itself  so  clear  and  broad  in  the  judgment  of  the 
court  as  not  to'  require  a  resort  to  such  liberal  construction. 

In  addition  there  are  numerous  reported  cases  in  which 
the  general  rule  is  announced  that  it  is  not  necessary  to  prove 
that  a  person  keeping  a  gaming  table  contrary  to  law  was 
the  owner  thereof.  He  is  equally  guilty  whether  he  acted 
as  principal  or  agent  or  servant  of  the  owner.  One  of 
the  leading  cases  in  which  this  rule  is  announced  is  that  * 
in  which  the  court  interpreted  a  statute  of  Maryland  which 
formed  a  part  of  the  foundation  upon  which  the  several 
sections  referred  to  in  the  code  of  the  District  of  Columbia, 
relating  to  gambling,  were  based. 

^  Biddle  v.  United  States,  ante,  p.  120;  Sexton  v.  United  States, 
ante,  p.   187. 

=  Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  865. 

'Id.  sec.  868. 

'U.  S,  V,  Conner,  1  Cranch  (U,  S,  C,  C),  102,  Another  case  in 
point  is  Toll  v.  State,  40  Fla.  169,  23  So.  942. 


BROWN  V.  SEXTON,  OCT.   28,    1910.  211 

Upon  the  facts  and  law  of  the  case  the  Court  is  satisfied 
beyond  a  reasonable  doubt  that  the  defendant  is  guilty  as 
charged,  and  the  Court  so  finds. 

The  defendant  was  sentenced  to  sixty  days'  imprisonment. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Laura  Brown,  Plaintiff,  v.  Robert  W.  Sexton,  Defendant. 

[Civil  Action  No.  90;  filed  October  28,  1910.] 

SYLLABUS. 
(By  the  Editor.) 

1.  EXTRATERRITORIALITY:      CONFLICT    OF     LAWS;     MORTGAGES.      The 

validity  of  a  mortgage  registered  at  the  Spanish  Consulate  in 
Shanghai  and  covering  property  likewise  registered,  must  be 
determined  by  Spanish  law. 

2.  Id. :  Id.:  Id.:  Notice.     Under  said  law  a  mortgage  is  not  entitled 

to  registry,  and  does  not  constitute  notice,  unless  executed  be- 
fore a  notary. 

F.  M.  Brooks,  Esq.,  for  plaintiff. 
W.  S.  Fleming,  Esq.,  for  defendant. 

Thayer,  J.: 

The  material  allegations  are  that  Frank  Gordon,  being 
owner  of  real  property  at  Shanghai  with  buildings  and 
furnishings  thereon,  together  known  as  the  *'Alhambra 
Gardens,"  the  title  deeds  of  which  were  registered  in  the 
Spanish  Consulate  at  Shanghai,  executed  and  delivered  to 
James  H.  Brown  on  June  12,  1907,  a  mortgage  thereon  in 
the  sum  of  Mexican  $60,000;  that  the  mortgage  was 
registered  in  the  Spanish  Consulate;  that  on  October  13, 
1909,  in  execution  of  a  judgment  for  Mexican  $56,000, 
obtained  in  the  Spanish  Consulate  against  Frank  Gordon 
by  Robert  W.  Sexton,  the  premises  were  sold  at  public 
auction  and  were  bought  for  Taels  36,000  by  Robert  W. 
Sexton  and  title  deeds  thereof  were  registered  and  issued 
to  him ;  that  Robert  W.  Sexton,  at  the  time  of  the  sale  and 
the  issuance  of  the  title  deeds,  had  notice  of  the  existence 
of  the  mortgage;  and  that  the  petitioner,  Laura  Brown, 
wife  of  James   H.   Brown,   is   assignee   of  the   mortgage. 


212  I  EXTRATERRITORIAL  CASES. 

The  petition  is  for  a  decree  that  Robert  W.  Sexton  holds 
the  property  under  and  subject  to  said  mortgage. 

The  above  recited  allegations  of  the  plaintiff  are  not 
disputed  excepting,  first,  as  to  the  character  and  effect  of 
the  transaction  claimed  to  constitute  the  mortgage  and, 
second,  as  to  the  knowledge  of  the  mortgage  by  the  de- 
fendant. 

The  jurisdiction  by  the  Spanish  Consular  Court  of  the 
person  of  Frank  Gordon  and  of  his  real  and  personal  prop- 
erty at  Shanghai  was  established  by  said  Court  and  the 
locus  of  the  contract  and  of  the  property  it  affects  is  iden- 
tical. The  peculiarity  that  the  same  real  property  situate 
in  Shanghai  may,  by  reason  of  the  existence  here  of  treaty 
rights  of  seventeen  powers,  and  the  fact  that  extraterritorial 
jurisdiction  of  real  property  follows  that  of  the  owner's  per- 
son, be  subject  now  to  the  jurisdiction  of  one  power  and 
again  to  that  of  another,  does  not  affect  the  operation  of 
the  principles  of  private  international  law  involved  in  the 
present  action.  The  law  applicable  to  the  person,  the 
contract  and  the  property  subject  to  the  judgment  referred 
to,  is  Spanish  law.  All  parties  dealing  with  defendant 
must  be  presumed  to  have  had  knowledge  of  his  status  as 
a  Spanish  subject  and  of  the  provisions  of  the  Spanish  law 
by  which  his  property  rights  would  be  protected  and  his 
legal  obligations  determined. 

The  law  of  Spain  relating  to  mortgages  was  proved  by 
the  testimony  of  Sr.  Carlos  Sostoa,  Consul  for  Spain,  whose 
presence  at  the  trial  and  whose  learning  in  the  law  greatly 
aided  the  Court.  Copies  of  the  Spanish  Civil  Code,  ar- 
ticles 1857,  1875  and  1880  and  of  the  Spanish  Law  of 
Mortgages,  articles  2,  3,  23,  27,  146  and  396  were  put  in 
evidence  in  translation  into  English  on  the  oral  verifica- 
tion of  Sr.  Sostoa.  Article  3  of  the  Law  of  Mortgages 
reads : 

"To  permit  the  record  of  the  title  deeds  mentioned  in  the  preceding 
article  [which  include  mortgages]  they  -.iiust  be  in  the  shape  of  a 
public  writing,  writ  or  certified  document  issued  by  a  judicial  author- 
ity or  by  the  Government  or  its  agents  in  the  form  prescribed  by 
the  regulations." 


BROWN  V.  SEXTON,  OCT.  28,  1910.         213 

Articles  1857  and  1875  of  the  Spanish  Civil  Code  require 
that  mortgages  be  drawn  and  executed  before  an  officer 
known  as  a  notary  having  quasi- judicial  authority  and  fol- 
lowing certain  statutory  formalities.  Article  1875  of  the 
same  code  provides  that  it  is  indispensable  to  the  validity 
of  a  mortgage  that  it  be  recorded  in  a  record  kept  by  the 
notary  and  styled  a  "register  of  property."  In  connection 
with  his  other  functions  the  Spanish  Consul  at  Shanghai 
has,  by  law,  the  functions  of  a  notary. 

The  instrument  in  question  was  not  drawn  or  executed 
before  the  Spanish  Consul  in  his  capacity  as  a  notary.  It 
was  therefore  not  entitled  to  be,  and  was  not,  recorded  in 
the  "register  of  property."  Consequently  the  recording  of 
it  in  another  record  removed  it  from  the  provisions  of 
article  23  of  the  Spanish  Law  of  Mortgages  which  makes 
entry  in  the  "register  of  property"  constructive  notice  to 
"third  persons,"  i.  e.,  to  persons  who,  according  to  article 
27  of  the  same  law,  have  not  participated  in  the  recorded 
instrument.  In  the  purview  of  the  Spanish  law  the  in- 
strument relied  on  by  the  plaintiff  as  a  mortgage  was  there- 
fore not  a  valid  mortgage  and  the  record  given  to  it  was 
not  a  notice  of  its  existence. 

Under  the  well  known  principles  of  private  interna- 
tional law,  Spanish  law  applies  and  is  decisive  of  the 
invalidity  of  the  instrument  and  the  failure  of  notice,  and 
must  be  given  effect. 

"Generally  speaking,"  says  Story,^  "the  validity  of  a  contract  is  to 
be  decided  by  the  law  of  the  place  where  it  is  made  *  *  *  jf  valid 
there,  it  is  by  the  general  law  of  nations,  jure  gentium,  held  valid 
everywhere  by  the  tacit  or  implied  consent  of  the  parties.  The  rule 
is  founded,  not  merely  in  the  convenience,  but  in  the  necessities,  of 
nations ;  for  otherwise  it  would  be  impracticable  for  them  to  carry  on 
an  extensive  intercourse  and  commerce  with  each  other.     *     *     * 

"The  same  rule  applies,  vice  versa,  to  the  invalidity  of  contracts; 
if  void  or  illegal  by  the  law  of  the  place  of  the  contract,  they  are 
generally  held  void  and  illegal  everyv/here.  This  would  seem  to  be 
a  principle  derived  from  the  very  elements  of  natural  justice.  *  *  * 
If  void  in  its  origin,  it  seems  difficult  to  find  any  principle  upon  which 
any  subsequent  validity  can  be  given  to  it  in  any  other  country." 


'Conflict  of  Laws  (8th  ed.),  sees.  242-3. 


214  I  EXTRATERRITORIAL  CASES. 

The  application  of  these  principles  to  the  evidence  in 
the  present  action  is  clear.  The  instrument  is  not  a  valid 
mortgage.  It  did  not  serve  as  notice  to  the  defendant. 
It  did  not  attach  to  the  property  as  a  lien  against  subse- 
quent purchasers. 

The  petition  is  dismissed  with  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

R.    M.   NOBLSTON,    Plaintiff,   v.    Vacuum    Oil    Company, 

Defendant. 

[Civil  Action  No.  83;   filed  Nov.  3,  1910.] 

SYLLABUS. 
(By  the  Editor.) 

1.  CONTRACTS:    EVIDENCE   reviewed    and    found    insufficient    to    show 

delivery  of  one  of  the  letters,  alleged  to  form  part  of  an  uni- 
lateral  contract. 

2.  Id. :  Employment:  Interpretation.     An  allowance  of  commissions 

on  "your  net  marine  sales"  covers  not  only  the  first  sales  to 
customers  obtained  by  the  employee,  but  also  subsequent,  tho 
unsolicited,  ones. 

3.  Id. :    Id.:    Id.     Plaintiff's   services   found   to  have   been   continuous 

and  his  promised  commissions  due  until  paid. 

W.  S.  Fleming,  Esq.,  for  plaintiff. 
Arthur  Bassett,  Esq.,  for  defendant. 

Thayer,  J.  : 

The  plaintiff  w^as  for  a  period  of  about  twelve  years  an 
employee  of  the  defendant  company  as  a  salesman  upon  a 
fixed  salary.  On  May  31,  1910,  he  was  dismissed  from  the 
company's  service  and  all  his  claims  on  fixed  salary  account 
were  paid.  Shortly  thereafter  he  made  demands  upon  the 
company  for  certain  commissions  on  what  were  designated 
as  "net  marine  sales"  which  he  alleged  were  due  him  and, 
the  company  having  refused  or  failed  to  comply  with  said 
demands,  this  suit  is  brought  to  secure  an  accounting  and 
a  payment  to  the  plaintiff  of  the  amount,  if  any,  thus  found 
due. 


NOBLSTON  V.  VACUUM  OIL  CO.,  NOV.    3,   1910.  215 

The  plaintiff  bases  his  cause  of  action  on  a  certain  letter, 
bearing  date  February  21,  1906,  from  defendant  to  plaintiff, 
the  original  of  which  is  in  evidence,  and  which  reads : 

R.  M.  Noblston,  Esq., 

Shanghai. 
Dear  Sir: 

Confirming  arrangements  outlined  in  my  personal  letter  this  will 
serve  to  advise  you  that  we  shall  allow  you  42%  (four  and  a  half  per 
cent)  on  your  total  net  marine  sales  commencing  from  January  1st 
this  year  but  with  the  understanding  that  we  do  not  bind  ourselves 
to  continue  this  arrangement  and  that  we  reserve  the  right  to  cancel 
or  modify  same  at  any  time  we  may  think  proper.  We  also  reserve 
the  right  to  transfer  you  to  any  other  district  we  may  find  necessary 
and  we  wish  it  to  be  clearly  understood  that  whenever  you  cease  to 
be  connected  with  the  Company  either  by  your  own  desire,  or  our 
wishing  to  dispense  with  your  services,  no  further  commission  shall 
accrue  on  sales. 

Your  travelling  expenses  will  be  allowed,  and  should  be  charged 
up  thru  your  daily  reports  as  usual  with  vouchers  attached. 

Hoping  that  you  will  find  this  arrangement  to  your  entire  satis- 
faction, and  awaiting  your  confirmation. 
Yours  very  truly, 

T.  Lemon. 

It  will  be  observed  that  said  letter  opens  with  a  reference 
to  "my  personal  letter"  which,  however,  the  plaintiff  was 
unable  to  produce  and  the  defendant  offered  in  evidence 
what  was  alleged  to  be  a  copy  thereof  which  reads  as 
follows : 

February  21,  1906. 
Dear  Mr.  Noblston: 

I  have  to  explain  that  the  Company  are  averse  to  having  anything 
in  the  way  of  charges  for  entertaining  appear  on  their  official  records 
and  so  I  am  arranging  to  make  you  a  special  allowance  in  the  form 
of  a  commission  on  your  monthly  sales  and  leaving  you  this  money 
to  spend  in  any  way  you  like  for  the  furthering  of  business.  This 
change  will  come  into  force  from  the  commencement  of  this  year 
and  from  that  date  we  will  give  you  a  credit  of  Al'/t  (four  and  one 
half  per  cent)  on  your  total  sales  to  the  Marine  Trade.  I  am  advis- 
ing you  of  this  personally  so  that  you  will  understand  why  we  in  our 
official  letter  are  arranging  to  allow  you  any  commission  at  all. 

The  money  you  will  spend  as  your  judgment  dictates  and  you  will 
not  be  required  to  give  any  account  of  it.  You  will  of  course  under- 
stand that  you  will  not  be  in  order  to  charge  any  expenses  for  enter- 


216  I  EXTRATERRITORIAL  CASES. 

taining  in  future   and   your   daily   reports   will   be   collected   in   this 
respect  from  January  1st  this  year  to  date.     It  will  however  be  quite 
in  order  for  you  to  charge  up   traveling  expenses   as  formerly. 
Trusting  you  will  find  this  change  to  your   satisfaction, 

Yours  very  truly, 

T.  Lemon. 

The  plaintiff  contended  that  the  official  letter  constituted 
the  contract  between  the  parties  and  that  the  personal  letter 
referred  to  in  its  opening  paragraph  must  be  considered 
as  extrinsic  matter  and  was  not  admissible  to  vary  any 
of  the  terms  of  the  contract  as  set  forth  in  the  official 
letter.  The  court  is  satisfied  that  the  rule  invoked  does 
not  apply  and  that  the  two  letters,  called  personal  and 
official  respectively,  if  satisfactorily  proved,  would  together 
reasonably  constitute  the  writings  from  which  the  actual 
agreement  of  the  parties  would  necessarily  be  deduced. 

But  the  plaintiff  denies  that  he  received  the  so-called 
personal  letter.  He  testifies  that  his  understanding  of  the 
terms  offered  to  him  respecting  commission  on  sales  were 
that  said  commissions  were  intended  as  additions  to  his 
salary  allowance.  If  the  evidence  offered  by  the  defendant 
established  convincingly  that  said  letter  was  sent  to  and 
delivered  to  the  plaintiff  the  court  would  not  be  inclined  to 
accept  the  mere  statement  of  the  plaintiff  that  he  had  not 
received  or  seen  said  letter  as  sufficient  to  relieve  him 
from  its  terms.  The  direct  reference  thereto  in  the 
letter  which  he  did  receive  would  reasonably  have  re- 
quired him,  in  his  own  interest,  to  ascertain  its  terms. 
It  does  not  appear  in  evidence  that  he  made  any  effort 
in  this  direction.  It  is  difficult  to  excuse  his  failure  in  this 
respect.  A  man  of  his  evident  business  sense  would  na- 
turally, as  a  matter  of  ordinary  prudence,  have  sought  to 
ascertain  what  were  the  "arrangements  outlined"  in  the 
letter  referred  to  and  thus  to  know  exactly  what  were  the 
intentions  of  the  company.  However,  as  the  letter  of  the 
company  addressed  to  the  plaintiff  and  received  by  him 
is  clear  in  terms  and  by  itself  justifies  the  interpretation 
that  the  commissions  allowed  were  intended  to  be  in  ad- 
dition to  salary,  we  think  that  the  burden  of  proof  as  to 
verity  of  the  copy  offered  and  as  to  the  fact  that   said 


NOBLSTON  V.  VACUUM  OIL  CO.,  NOV.    3,   1910.  217 

letter  was  actually  delivered  to  the  plaintiff,  is  upon  the 
defendant  company. 

The  evidence  offered  on  these  points  is  far  from  conclu- 
sive. Mr.  Bottenheim,  the  present  general  manager  of 
the  defendant  company  in  Shanghai,  was  its  only  witness. 
In  his  direct  examination  he  testified  that  such  a  letter 
had  been  sent  to  the  plaintiff  but  his  subsequent  testimony 
is  less  positive.  The  letter  bore  the  signature  of  Mr. 
Lemon,  the  former  manager,  who  was  superseded  by  Mr. 
Bottenheim  in  November,  1907,  and  who  is  not  now  within 
the  jurisdiction  of  the  Court.  However,  Mr.  Bottenheim 
was  assistant  manager  at  the  time  when  these  letters  were 
alleged  to  have  been  written  and  he  testifies  to  personal 
knowledge  of  these  transactions. 

This  evidence  is  accepted  as  satisfactorily  establish- 
ing that  the  copy  of  letter  offered  in  evidence  is  a 
true  copy  of  a  letter  written  and  signed  by  Mr.  Lemon 
as  of  the  date  February  21,  1906.  But  the  testimony  is 
not  conclusive  as  to  the  allegation  that  said  letter  was 
actually  handed  or  forwarded  to  plaintiff  and  no  testimony 
is  offered  tending  to  show  that  said  letter  actually  reached 
him.  At  that  stage  the  papers  were  parts  of  what  might 
be  described  as  an  unilateral  contract.  The  plaintiff  was 
already  in  the  employ  of  the  defendant  on  a  stated  salary. 
He  was  seeking  increased  compensation.  It  sufficiently 
appears  in  evidence  that  he  was  a  trusted  and  valuable 
employee  who  might  reasonably  be  asking  an  increase  of 
salary.  The  so-called  official  letter,  on  its  face,  may  be 
reasonably  construed  as  granting  an  increase.  If  it  was 
to  the  intent  of  the  company  concurrently  to  advise  the 
plaintiff  that  it  was  not  so  to  be  construed,  the  necessity  of 
giving  notice  thereof  promptly  and  surely  to  the  plaintiff 
is  obvious.  If  by  misadventure,  of  any  kind,  for  which  he 
was  not  responsible,  the '  plaintiff  failed  to  receive  said 
letter  and  thus  had  no  knowledge  of  its  contents,  he  could 
not  be  bound  by  its  terms.  While  therefore,  as  hereinbefore 
stated,  the  plaintiff  was  put  on  guard  by  the  reference  in 
the  opening  paragraph  of  the  so-called  official  letter,  the 
facts  of  the  case  and  the  nature  of  the  transaction  as  shown 
in  this  record  are  such  as  to  put  upon  the  defendant  a 


218  I  EXTRATERRITORIAL  CASES. 

much  heavier  burden  to  bring  actual  notice  of  the  contents 
of  this  letter  to  the  plaintiff.  The  defendant  offered  no 
evidence  tending  to  show  that  the  letter  ever  reached  the 
plaintiff.  Mr.  Bottenheim's  testimony  is  to  the  effect  that 
a  general  letter,  such  as  disclosed  by  the  copy  offered  in 
evidence,  was  written  in  the  office  and  sent  to  all  the  re- 
presentatives of  the  company  in  the  Shanghai  district. 

It  appears  from  the  evidence  that  commissions  for  only 
one  riionth  (January,  1906)  were  paid.  Mr.  Bottenheim  tes- 
tified that  the  sum  thus  paid  was  returned  to  the  company 
by  the  plaintiff.  This  was  denied  by  the  plaintiff.  It  would 
appear  that  if  this  repayment  had  actually  been  made, 
the  books  of  the  company  would  have  furnished  the  best 
evidence  thereof.  If  the  fact  of  repayment  were  thus  es- 
tablished, it  would  have  been  of  weight  in  determining 
whether  or  not  the  plaintiff  had  actual  knowledge  of  the 
contents  of  the  personal  letter.  No  such  proof  was  ten- 
dered by  the  defendant.  The  whole  transaction  was  such 
that,  in  the  court's  opinion,  the  defendant  should  be  reason- 
ably held  to  clear  and  conclusive  proofs.  It  was  of  course 
legally  competent  for  the  company  to  disclose  its  intentions 
in  two  letters,  one  referring  to  the  other.  But  if,  by  its 
fault  or  neglect,  one  of  these  communications  failed  to  reach 
the  plaintiff,  and  the  plaintiff  received  the  other  letter  and 
accepted  its  terms  being  in  themselves  clearly  stated,  the 
company  must  bear  the  burden  of  its  own  fault.  On  the 
evidence  in  the  record  it  is  held  that  rights  of  the  parties 
to  this  controversy  must  be  determined  by  the  terms  recited 
in  the  official  letter  alone. 

The  next  matter  requiring  consideration  is  whether  or 
not  the  service  of  the  plaintiff  was  continuous  during  the 
period  extending  from  January  1,  1906,  to  May  31,  1910. 
The  defendant  in  its  answer  alleges  that  from  some  time 
in  July,  1908,  to  some  time  in  November  of  the  same  year, 
the  plaintiff  was  not  in  its  employ  but  was  during  that 
period,  in  the  service  of  Diedrichsen,  Jebsen  &  Company 
of  Vladivostok.  The  salary  of  the  plaintiff  during  the 
period  named  was  paid  by  the  Vladivostok  firm,  which  firm 
was  one  of  the  agents  of  the  defendant  company,  but 
plaintiff's  expenses  were  paid  by  defendant.     It  does  not 


NOBLSTON  V.  VACUUM  OIL  CO.,  NOV.   3,    1910.  219 

appear  to  the  court  that  the  circumstances  of  the  case  justify 
a  recital  in  detail  of  the  evidence  submitted  on  either  side 
respecting  this  question.  It  is  sufficient  to  say  that  upon 
the  whole  evidence  the  court  finds  that,  for  the  purposes 
of  this  contract,  the  plaintiff  was  in  the  continuous  employ 
of  the  defendant  during  the  whole  period  in  controversy. 

The  next  question  is  to  what  extent,  if  any,  the  plaintiff's 
claim  is  affected  by  the  fact  that  he  received  no  payments 
on  account  of  said  commissions  except  for  the  month  of 
January,  1906.  It  is  admitted  by  the  plaintiff  that  he  at  no 
time  made  any  demand  for  payment  thereof  until  after 
he  was  discharged  from  the  company's  service  in  May,  1910. 
He  testifies  that  he  had  the  assent  of  Mr.  Lemon,  the 
manager  at  the  time,  to  allow  these  credits  to  accumulate 
on  the  books  of  the  company.  This  testimony  has  not  been 
met  directly.  It  is  not  claimed  that  there  was  any  written 
assent  on  the  part  of  Mr.  Lemon.  The  testimony  of  Mr. 
Bottenheim  may  be  taken  as  a  denial  that  there  is  any  exist- 
ing evidence  in  the  records  of  the  company's  office  showing 
such  assent  and  no  precedent  for  such  action.  However, 
the  letter  fixes  no  time  for  the  payment  of  the  commissions 
to  be  allowed.  In  the  absence  of  any  provision  for  the 
time  of  payment  the  allowance  must  be  regarded  as  due 
until  paid.  Whether  or  not  Mr.  Lemon  assented  to  post- 
ponement of  payments  does  not  appear  to  be  material. 

The  next  question  is  the  status  of  the  plaintiff  as  an 
employee  of  the  company.  He  claims  that  he  was  its  chief 
salesman  in  the  district.  His  contention  is  denied  by  the 
company.  On  the  evidence  he  is  entitled  to  be  regarded  as 
an  employee  of  the  company  who  made  sales  and  cannot 
be  held  to  have  occupied  any  special  position.  It  seems 
quite  probable  that  he  was  the  oldest  in  service  and  the 
company's  most  capable  and  efficient,  and  at  times  its  only, 
salesman  in  Shanghai ;  but  the  evidence  does  not  go  farther. 
The  letter  recites  that  the  commission  is  to  be  allowed  on 
"your  net  marine  sales."  The  language  is  plain  and  cer- 
tain. It  can  not  be  extended  to  cover  anything  more  than 
its  terms  reasonably  imply,  i.  e.,  plaintiff's  individual  sales. 
From  the  nature  of  the  business,  plaintiff's  long  service 
with    the    defendant    and    the    value    of    said    service    as 


220  I  EXTRATERRITORIAL  CASES. 

clearly  shown  in  the  evidence,  it  seems  fair  and  reasonable 
that  the  term  "your"  should  be  interpreted  to  cover  not 
only  the  first  sales  to  company  patrons  obtained  by  the 
plaintiff  but  likewise  all  sales  subsequent  to  the  same  party 
tho  not  personally  solicited  by  plaintiff.  But  he  is  not 
entitled  to  interest  and  the  question  of  costs  will  be  deter- 
mined later. 

An  order  on  the  defendant  company  for  an  accounting  in 
harmony  with  these  findings  will  be  entered  and  plaintiff's 
counsel  may  submit  a  proper  draft. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
C.  R.  Bennett,  Plaintiff,  v.  F.  M.  Brooks,  Defendant. 

[Civil  Action  No.  87  (verified  from  docket)  ;  filed  December  3,  1910.] 

SYLLABUS. 
(By  the  Editor.) 

1.  PROCEDURE  of  American   Courts  in  China  is  fixed  primarily  by 

the  Regulations  of  1864  as  modified  and  supplemented  by  the 
Judge  of  this   Court. 

2.  Id.  :    Parties.     Nothing  in   said  procedure   prevents  a  party  from 

disclosing  his  interest  at  any  stage  of  an  action. 

3.  Id.  :  Id.  :   One  who  is  not  a  party  to  the  action  cannot,  as  a  rule, 

be  a  party  to  the  judgment. 

4.  Id. :    Id.:    Intervention   after   judgment,   by   a   stranger   claiming 

to  be  the  real  plaintiff,  denied  where  the  result  would  be  to 
prevent  the  defendant  from  setting  off  another  judgment  in 
his  favor. 

5.  Id.  :    Set   Off   of   recipi'ocal   judgments    is    discretionary   with    the 

court. 

Messrs.  G.  H.  Wright  and  S.  Fessenden,  for  plaintiff. 
G.  H.  Wright,  Esq.,  for  alleged  assignee. 
Messrs.  F.  M.  Brooks  and  W.  S.  Fleming,  for  defendant, 
opposing  petition  of  alleged  assignee. 

Thayer,  J.: 

In  this  case  the  amount  sued  for  was  Taels  8,450, 
alleged  to  be  the  purchase  price  of  certain  rubber  shares 
purchased  by  the  plaintiff  under  instruction  of  the  de- 
fendant.    The  record  discloses  that  before  the  case  was  set 


BENNETT  V.  BROOKS,  DEC.  3,  1910.  221 

down  for  trial  the  defendant  submitted  an  offer  to  counsel 
for  the  plaintiff  to  confess  judgment  on  condition  that 
plaintiff  deposit  the  shares  in  controversy  with  the  clerk 
of  this  court,  to  be  turned  over  to  defendant  as  soon  as 
the  judgment  should  be  satisfied.  Following  this  tender 
and  in  accord  therewith,  counsel  for  plaintiff  delivered  the 
shares  to  the  clerk  and  the  defendant,  on  the  following 
day,  November  8,  1910,  filed  his  confession  authorizing 
judgment  to  be  entered  to  the  full  amount  claimed,  with 
interest  and  costs. 

On  November  9,  1910,  the  defendant  filed  with  the  clerk 
an  assignment  to  himself  of  a  judgment  against  the  plaintiff 
in  this  case,  obtained  in  this  court, ^  on  November  3,  1910, 
for  Taels  8,993.38  and  costs,  and  submitted  a  motion  for  an 
order  to  set-oft  this  judgment  against  that  confessed  by  him 
in  the  pending  cause.  Up  to  this  stage  of  the  proceed- 
ings no  parties  in  interest  had  appeared  other  than  the 
plaintiff  and  the  defendant.  But  on  November  12,  1910, 
the  verified  petition  of  a  third  party,  "The  Cathay  Trust, 
Limited,"  a  Hongkong  Corporation  doing  business  in  Shang- 
hai, was  filed,  asking  leave  to  be  joined  and  heard  as  an 
interested  party  on  said  motion..  In  said  petition  it  is  al- 
leged in  substance: 

1.  That  on  June  29,  1910,  C.  R.  Bennett,  the  plaintiff  in  this  cause, 
had  transferred  by  a  document  in  writing  to  said  corporation  all  his 
right,  title  and  interest  in  respect  of  all  sums  of  money  due  and 
payable  to  him  by  the  defendant  in  this  cause  growing  out  of  the 
June  settlement  on  the  Shanghai  Stock  Exchange  as  set  out  in  the 
petition  filed  in  this  action. 

2.  That  by  virtue  of  said  assignment  the  said  Cathay  Trust,  Lim- 
ited, is  the  absolute  owner  of  all  said  sums  due  and  owing  by  F.  M. 
Brooks. 

On  November  26,  1910,  plaintiff  filed  a  so-called  "peti- 
tion," with  substantially  the  same  averments  as  in  that  of 
the  Cathay  Trust,  adding  in  paragraph  3, 

"That  the  said  action,  C.  R.  Bennett  v.  F.  M.  Brooks,  was  brought 
at  the  direction  and  for  the  use  of  the  said  Cathay  Trust,  Limited." 

Assuming  these  allegations  to  be  true,  the  vital  question 
for  consideration  seems  to  be  whether  or  not  the  assignee 


'  Loa  Lai  Ting  et  al.  v.  Bennett. 


222  I   EXTRATERRITORIAL  CASES. 

of  Bennett  can  be  allowed  to  intervene  at  this  stage  in  the 
face  of  the  prior  claim  for  set-off  by  a  judgment  creditor 
of  Bennett.  When  the  motion  came  on  for  hearing  the 
court  allowed  counsel  appearing  for  the  Cathay  Trust,  Lim- 
ited, to  participate  in  argument  on  condition  that  he  limit 
his  discussion  to  the  question  stated. 

But  for  the  intervention  sought  on  the  part  of  the  Cathay 
Trust,  the  application  for  set-off  would  readily  have  been 
granted,  that  matter  being  determinable  at  the  discretion 
of  the  court.-  What  is  the  position  of  the  Cathay  Trust? 
It  alleges  that  Mr.  Bennett  is  the  nominal  plaintiff  in  this 
suit  and  that  the  company  is  the  real  party  in  interest  by 
virtue  of  an  assignment  made  to  it  by  Bennett.  Counsel 
argues  that  under  these  circumstances  it  was  allowable  to 
bring  the  suit  in  the  name  of  Bennett  but  that  any  declar- 
ation that  he  was  the  nominal  or  legal  owner  of  the  choses 
in  action  involved  in  the  suit  and  petitioner  the  real  owner, 
would  have  been  fatal.  No  authority  is  cited  in  support 
of  this  contention  and  none  is  known  to  the  court.^ 
The  procedure  of  this  court  is  regulated  by  the  organic 
act,  which  provides  that  it  shall  be  in  accordance,  so  far  as 
practicable,  with  the  then  existing  procedure  of  American 
Consular  Courts  in  China  which  is  prescribed  in  the  Court 
Regulations.  So  far  as  defining  the  character  and  form  of 
the  pleading  by  which  a  plaintiff,  in  a  civil  action  on  a  con- 
tract, shall  initiate  an  action,  Regulations  1  and  3  appear  to 
be  the  only  ones  relating  thereto  and  they  impose  no  re- 
strictions on  the  pleader.  The  same  section  of  the  creating 
act  gives  to  the  judge  of  the  court  authority  to  amend  and 
supplement  said  rules  but  the  rules  cited  remain  as  they 
stood  at  the  time  when  the  act  was  passed.  It  is  quite 
obvious  on  reading  these  two  regulations  that  they  con- 
templated a  plain  and  simple  statement  of  the  facts  upon 
which  the  plaintiff  is  seeking  to  recover  and  that  it  was  not 

^Freeman,  Judgments  (4th  ed.),  sec.  467a;  Act  of  Congress  of 
March  3,  1901,  Sess.  II,  Ch.  854,  sec.  1571. 

^  Doubtless  counsel  were  relying  on  the  rule  that  "every  action 
must  be  brought  in  the  name  of  the  real  party  in  interest."  Act  of 
Congress  of  June  6,  1900,  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786, 
tit.  II,  sec.  25.     Ed. 


BENNETT  V.  BROOKS,  DEC.   3,   1910.  223 

intended  that  the  refinements  of  common  law  pleading 
should  be  exacted.* 

The  court  knows  of  no  reason  why  the  parties  interested 
in  this  case  should  not  have  been  disclosed.  If,  by  reason 
of  failure  to  do  so,  the  rights  of  one  claiming  to  be  the 
actual  party  in  interest  are  put  in  jeopardy,  the  excuse 
offered,  that  he  was  restrained  from  disclosing  his  interest 
in  the  original  petition  by  any  rule  of  pleading  having  force 
in  this  court,  has  no  foundation.  And  it  is  equally  true  that 
such  interest  could  have  been  disclosed  in  any  formal  or  in- 
formal way  at  any  stage  of  the  proceedings  prior  to  judg- 
ment so  as  to  have  been  effective,  certainly,  as  against  the 
defendant,  and  probably  as  against  all  third  parties. 

The  record  discloses  Bennett  as  plaintiff  and  as  the  only 
party  in  interest.  How  long  can  the  assignee  safely  keep 
silent  respecting  his  interest  in  these  choses  in  action?  Is 
he  charged  with  no  duty  to  protect  his  interests  by  giving 
full  notice?  The  contention  of  counsel  seems  to  be  that  no 
burden  of  this  character  rested  upon  the  Cathay  Trust,  that 
it  could  step  in  at  any  time,  whether  before  or  after  judg- 
ment, and  whether  before  or  after  some  judgment  creditor 
against  Bennett  had  sought  to  secure  relief  for  himself  by 
impounding  this  judgment  in  Bennett's  favor  with  a  dis- 
closure of  its  interest  and  that  upon  such  disclosure  the 
court  must  immediately  allow  intervention  and  ignore  all 
possible  intervening  interests.  A  mere  statement  of  this 
contention  carries  its  apparent  refutation  as  in  conflict  with 
the  reason  of  the  law  which  requires  due  diligence  of 
every  assignee  of  choses  in  action,  as  against  rights  which 
may  accrue  to  third  parties  without  notice. 

And  here  it  may  be  noted  that  while  counsel  stated  in 
argument  that  Brooks  had  notice  of  this  assignment,  no 
such  averment  is  made  in  the  petition.  Mere  statement 
of  counsel  on  such  a  material  point  does  not  afford  found- 
ation for  judicial  action.  The  general  rule  is  that  no  one 
can  be  treated  as  a  party  to  a  judgment  who  was  not 
also  a  party  to  the  action.^  There  are  exceptions  to 
this    general    rule,    but   there   are   none   which    in   prin- 

'  See  Chiang  Zung  Match  Factory  v.  Yek  Tong  Lin  F.  &  M.  Ins. 
Co.,  ajite,  p.  201. 

°  Freeman,  Judgments    (4th  ed.),  157. 


224  I  EXTRATERRITORIAL  CASES. 

ciple  would  include  an  assignee  whose  interest  was 
not  disclosed  before  judgment  or  before  the  assertion  of 
any  other  claim  by  third  parties.  This  does  not  con- 
travene the  familiar  rules  in  equity  which  counsel  has  cited 
in  relation  to  recognition  of  an  assignee's  rights  in  a  suit 
where  the  action  is  brought  in  the  name  of  the  assignor. 
Such  rights  are  subject  to  timely  assertion  under  equally 
familiar  rules. 

Such  are  the  facts  and  the  law  applicable  in  respect  to 
which  this  third  party  now  asks  leave  to  intervene  upon 
the  assertion  that  he  is  the  real  party  in  interest.  If  his 
allegation  that  he  held  an  assignment  from  the  plaintiff  of 
those  choses  in  action  be  accepted,  it  is  quite  obvious  that 
he  has  not  been  diligent  in  disclosing  said  interest  and  that 
no  reasonable  or  lawful  excuse  has  been  offered  therefor. 
The  judgment  tendered  as  a  set-off  is  a  judgment  recently 
rendered  in  this  court  against  Bennett,  the  plaintiff  in  this 
cause.  An  inspection  of  the  record  shows  that  the  action 
against  Bennett  was  filed  August  10,  1910,  prior  to  the 
date  of  instituting  this  cause. 

No  defence  was  made.  Judgment  was  by  default.  That 
action  was  based  on  a  promissory  note  which  bears  date 
April  21,  1910,  long  prior  to  the  date  alleged  as  that  of 
assignment  from  Bennett  to  the  Cathay  Trust.  If  such 
assignment  was  made  as  alleged,  it  is  quite  obvious  that 
in  making  it  Bennett  ignored  this  obligation  then  outstand- 
ing. It  is  true  that  the  obligation  had  not  at  that  time  been 
reduced  to  judgment  but  it  was  so  reduced  prior  to  any 
disclosure  on  the  part  of  the  Cathay  Trust  that  it  had  any 
interest  in  the  case  at  bar.  As  such,  on  the  facts  now  on 
this  record,  it  appeals  more  strongly  for  equitable  consider- 
ation than  does  the  belated  claim  of  the  Cathay  Trust, 
Limited. 

This  court  has  recently  tried  a  case  ^  relating  to  share 
transactions  in  which  judgment  has  not  yet  been  announced. 
But  enough  evidence  appears  in  the  record  of  that  cause  to 
indicate  that  the  plaintiff  there  had  an  agreement  with 
the  Cathay  Trust,  Limited,  covering  an  assignment  similar 

*  Shekury  v.  Brooks,  post,  225. 


SHEKURY  V.  BROOKS,  DEC.   19,   1910.  225 

to  that  now  disclosed.  There,  as  here,  no  direct  and  de- 
finite disclosure  of  interest  on  the  part  of  the  Cathay  Trust 
was  made.  And  the  same  is  true  in  a  recent  case  '  in  the 
British  Supreme  Court,  to  which  counsel  referred  in  argu- 
ment. The  court  will  indulge  in  no  presumptions  by  reason 
of  this  consistent  suppression  of  its  claim  as  a  real  party 
in  interest.  It  is  just  to  say  that  the  Cathay  Trust  has 
exhibited  no  affirmative  desire,  when  opportunity  was  of- 
fered, of  taking  the  court  into  its  confidence  and  thus  per- 
mitting adjudications  to  be  made  in  the  fullest  light.  That 
the  Cathay  Trust  did  not  do  so  in  the  case  at  bar  resulted 
wholly  from  its  own  voluntary  act.  It  chose  not  to  disclose 
its  interests  until  other  rights  without  notice  had  attached 
to  this  judgment. 

In  the  court's  view  on  the  showing  made  the  Cathay  Trust 
is  not  entitled  to  intervene  at  this  stage  and  its  petition  is 
denied.* 

The  motion  for  set-off  is  granted  and  will  be  given  effect 
in  accordance  with  the  terms  of  the  defendant's  confession 
of  judgment. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
G.  I.  Shekury,  Plaintiff,  v.  F.  M.  Brooks,  Defendant. 

[Civil  Action  No.  88;  filed  December  19,  1910.] 

SYLLABUS. 
(By  the  Editor.) 

1.  EXTRATERRITORIALITY:    CONFLICT  OF   LAWS.     In  the   extraterri- 

torial courts  in  China  the  law  normally  applied  is  the  lex  fori, 
i.   e.,   that  of   defendant's   nationality. 

2.  WAGERING  CONTRACTS.     The  doctrine  of  Toeg  &  Read  v.  Suffert 

{ante,  p.  112)  adhered  to  but  evidence  found  insufficient  to  show- 
that  plaintiff  knew  of  defendant's  unlawful  intent  and  recovery 
allowed. 

3.  Id.  :   The  Measure  of  such  recovery  is  the  difference  between  the 

"making  up"  price  and  the  buying  price  plus  brokerage. 


^  Michael  v.   Carmichael. 

*  This  was  reversed  on  appeal.     See  post,  p.  256. 

14008  O.  W. 15 


226  I   EXTRATERRITORIAL  CASES. 

4.  Id.  :  Double  Commissions.  But  where  the  broker  acts  for  both 
parties  and  claims  commissions  fx'om  each,  recovery  will  be 
denied. 

Messrs.  G.  H.  Wright  and  S.  Fessenden,  for  plaintiff. 
Messrs.  F.  M.  Brooks  and  W.  S.  Fleming,  for  defendant. 


Thayer,  J.: 

This  is  an  action  to  recover  the  cost  of  certain  rubber 
shares  alleged  to  have  been  purchased  by  the  plaintiff  under 
instructions  of  the   defendant. 

The  plaintiff  is  a  member  of  the  Shanghai  Stock  Exchange 
and  claims  that  in  the  several  transactions  he  was  acting 
merely  as  a  broker  and  agent  of  the  defendant  and  that 
he  followed  the  latter's  instructions  and  the  rules  of  the 
exchange.  In  support  of  his  claim  he  submits  in  evidence 
what  are  designated  as  "purchase"  and  "sales"  notes  cover- 
ing each  of  the  transactions  alleged.  Each  of  said  "pur- 
chase" and  "sales"  notes  bears  the  heading  "for  the  con- 
cerned" the  names  of  the  principals  not  being  disclosed. 
The  plaintiff"  seeks  to  have  the  defendant  held  bound  by 
contracts  thus  made  in  his  behalf  and  sues  for  indemnifi- 
cation in  amount  of  the  cost  price  of  the  shares  thus  con- 
tracted to  be  purchased.  All  of  the  transactions  occurred 
during  the  months  of  April,  May  and  June,  1910,  and  were 
for  future  delivery,  that  is,  on  the  June  settlement  day,  1910. 

Plaintiff'  raises  the  question  as  to  what  law  shall  be  ap- 
plied in  adjudicating  the  issues  in  this  case.  The  defendant 
being  an  American  citizen  the  foi^ni  is  a  court  of  the 
United  States.  This  follows  the  uniform  rule  that,  in  an 
extraterritorial  jurisdiction,  all  disputes  are  referred  for 
settlement  to  the  court  of  the  defendant's  nationality  and 
are  adjudicated  in  that  court  in  accordance  with  the  law 
of  the  country  of  whose  judicial  system  it  forms  a  part. 
In  China,  extraterritorial  jurisdiction  is  exercised  by  some 
seventeen  foreign  governments.  The  right  thus  exercised 
by  each  government  within  Chinese  territory  rests  upon 
substantially  identical  treaty  provisions.  Each  foreign 
power  possesses  jurisdiction  over  its  own  nationals  and 
each  thus  has  its  forum. 


SHEKURY  V.  BROOKS,  DEC.  19,  1910.  227 

Each  country  also  prescribes  its  own  body  of  law  to  be 
administered  in  such  forum.  It  is  equally  true  also  that  in 
the  exercise  of  such  jurisdiction,  China  represents  a  terri- 
torial locus  to  each  of  said  countries,  to  which  the  rights  of 
property  and  person  of  its  own  citizens  respectively  must  re- 
late and  to  which  they  must  be  referred  whenever  disputes 
arise.  In  these  respects  each  country  stands  upon  exactly 
the  same  ground.  In  view  of  these  conditions  the  court 
is  unable  to  discern  that  there  is  any  novel  rule  or  prin- 
ciple which  can  be  invoked  in  this  court  by  reason  of  the 
fact  that  the  existing  controversy  is  in  an  extraterritorial 
court  and  that  the  two  parties  are  of  different  nationalities. 
The  general  principles  determining  the  choice  of  law  in 
any  controversy  in  every  American  court  must  be  the  same. 
It  may  be  that  extraordinary  difficulties  will  arise  in  deter- 
mining the  choice  of  law  in  a  particular  case  in  an  extra- 
territorial court.  But  it  is  true  also  that  similar,  if  not 
greater,  difficulties  may  be  met  in  a  case  in  a  home  court 
into  which  some  foreign  element  intrudes. 

We  know  of  no  authority  upon  which  any  assumption 
can  be  based  as  to  the  intent  of  the  parties  respecting  the 
law  which  should  settle  their  disputes  other  than  that  fixed 
by  the  nationality  of  the  defendant.  The  mere  fact  that  one 
party  was  a  member  of  a  stock  exchange  thru  which  he 
was  dealing  and  to  which  the  transactions  related  and  that 
such  stock  exchange  was  not  an  American  corporation, 
would  afford  no  rational  ground  upon  which  to  justify  a 
court  in  excluding  its  own  laws  from  operation. 

The  fact  that  the  Shanghai  Stock  Exchange  is  a  Hong- 
kong corporation  does  not  necessarily  bring  any  foreign 
element  into  the  cause.  It  is  itself  a  foreign  corporation 
to  all  jurisdictions  in  China  and  it  would  be  novel  doctrine 
that  when  a  corporation  invades  foreign  territory  it  carries 
with  it  for  its  protection  the  law  of  the  place  of  its  creation. 
The  status  of  companies  originating  under  the  Hongkong 
Ordinances,  whose  business  is  transacted  and  whose  direc- 
tors reside  entirely  outside  the  Colony  of  Hongkong,  seems 
not  to  be  definitely  determined.^ 

^  Re  Dallas  Horse  Repository,  Hongkong  Supreme  Court,  October 
31,  1910. 


228  I  EXTRATERRITORIAL  CASES. 

Generally  speaking  the  choice  of  foreign  law  in  any  court 
follows  the  recognition  of  a  right  which  has  become  vested 
under  the  clear  provisions  of  the  particular  foreign  law 
invoked  and  respecting  which  the  court  can  have  no  trace 
of  doubt.  This  case  comes  far  short  of  furnishing  a  state 
of  fact  of  this  character  and  the  court  is  unable  to  perceive 
any  rational  ground  upon  which  to  resort  to  any  body  of 
law  other  than  that  which  would  determine  the  rights  of 
the  defendant  if  plaintiff  were  also  an  American  citizen. 
The  reasons  upon  which  the  court  is  asked  to  make  an 
excursion  in  seeking  to  discover  the  intent  of  the  parties, 
are  too  vague  and  uncertain  to  admit  of  their  acceptance. 

Counsel  for  the  plaintiff  also  discusses  the  question  as  to 
whether  wagering  contracts  are  illegal  under  the  law  avail- 
able to  this  court.  This  discussion  turns  mainly  upon  the 
definition  of  common  Imv  as  used  in  the  acts  conferring 
jurisdiction  on  consular  courts  in  China  and  in  the  act 
creating  this  court.  The  Court  is  satisfied  with  the  defini- 
tion of  commo7i  law  heretofore  given  and  applied. - 

The  defendant  claims  that  there  was  a  clear  understand- 
ing between  the  plaintiff  and  himself  that  defendant  was 
not  intending  actually  to  buy  any  shares,  that  no  delivery 
to  him  of  shares  was  contemplated  and  that  the  settlement 
between  him  and  the  plaintiff  was  to  be  made  only  on  dif- 
ferences. His  principal  defense  is  that  the  several  transac- 
tions referred  to  constituted  wagering  contracts  and  that 
the  plaintiff  cannot  recover  for  services  rendered  or  losses 
incurred  in  connexion  therewith.^ 

Defendant  testified  in  the  most  explicit  terms  that  the 
plaintiff  knew  of  his  purposes  to  deal  only  in  differences; 
that  he  had  so  dealt  with  one  Bennett,  also  a  member  of  the 
Shanghai  Stock  Exchange,  for  the  March  settlement  and 
that  he  had  declared  to  plaintiff  that  he  intended  to  make 
no  investment  in  rubber  shares  and  that  he  had  no  money 
with  which  to  make  such  investment.  His  testimony  on 
these  points  is  direct  and  specific.  The  court  has  no  dif- 
ficulty in  accepting  it  as  representing  his  actual  purpose  in 


-  Toeg  &  Read  v.   Suffert,  ante,  p.  113, 
'Id. 


SHEKURY  V.  BROOKS,  DEC.  19,  1910.  229 

these  transactions.  Such  purpose  was  entirely  consistent 
with  the  wild  speculation  in  rubber  shares  which  at  that 
time  widely  prevailed  in  Shanghai  and  which,  as  the  tes- 
timony shows,  affected  all  classes.  Dealing  in  rubber  shares 
had  developed  into  a  mania  which  infected  both  brokers 
and  people  and  furnished  little  suggestion  that  many  of  the 
participants  had  any  thought  of  making  actual  investments. 
The  circumstances  are  such  as  to  make  it  probable  that  the 
defendant  was  merely  seeking  illusive  profits  out  of  specu- 
lation on  differences. 

The  testimony  of  the  plaintiff  conflicts  on  this  point  with 
that  given  by  defendant.  Altho  the  court  was  not  strongly 
impressed  with  its  candour  and  sincerity,  the  plaintiff's 
denial  of  the  defendant's  material  allegations  is  sufficiently 
clear.  He  had  been  a  member  of  the  Shanghai  Stock  Ex- 
change for  many  years  but  he  had  not  been,  in  recent  years, 
actively  engaged  as  a  broker.  He  had  resumed  work  as 
a  broker  attracted  by  the  unexampled  activities  of  the 
rubber  share  market.  He  was  fully  acquainted  with  the 
conditions  then  prevailing.  As  a  broker  he  executed  or 
attempted  to  execute  large  orders  without  exacting  money 
advances  or  security  from  his  client.  Obligations  were 
recklessly  assumed.  The  circumstances  recited  tend  to 
support  defendant's  testimony  that  in  these  transactions 
he  was  not  buying  rubber  shares  with  a  view  to  actual 
delivery.  They  tend  also  to  corroborate  defendant's  con- 
tention that  the  plaintiff  understood  his  purpose  to  deal 
only  on  differences.  Some  additional  weight  adverse  to 
the  plaintiff  must  also  be  given  to  the  fact  that  he  concealed 
from  the  defendant  the  names  of  parties  from  whom  he 
purchased,  thus  allowing  a  possible  inference  to  be  drawn 
that  he  was  himself  a  principal  in  these  transactions  and 
that  the  so-called  "purchase  notes"  were  only  memoranda  of 
transactions  in  differences  between  himself  and  the  defend- 
ant. 

The  court  finds  no  rule  of  the  Shanghai  Stock  Exchange 
requiring  the  suppression  of  the  names  of  principals.  Such 
a  practice  has  been  described  as  a  custom  of  the  Exchange. 
There  is  no  evidence  in  the  record  that  such  custom  was 
brought   to   the   knowledge   of  the   defendant.     Whatever 


230  I   EXTRATERRITORIAL   CASES. 

presumptions  may  arise  as  to  the  knowledge  of  regular  rules 
of  the  exchange,  printed  and  in  common  circulation,  no 
such  presumption  can  be  indulged  respecting  mere  customs. 
Knowledge  of  customs  must  be  established  by  affirmative 
proof. 

"A  custom  among  brokers  in  the  settlement  or  differences  which 
works  a  substantial  and  material  change  in  the  principal's  rights  or 
obligations  is  not  binding  upon  the  principal  without  his  assent;  and 
that  assent  can  be  implied  only  from  knowledge  of  the  custom  which 
it  is  claimed  authorizes  it.'" 

Such  a  custom  is  inherently  vicious.  It  obviously  opens 
a  way  to  frauds  of  various  kinds  as  has  been  recognized  and 
commented  upon  by  the  courts.  On  the  other  hand  the 
fact  that  the  plaintiff,  after  receiving  instructions  to  buy, 
in  each  case  went  into  the  market  and  made  actual  contracts 
of  purchase  and  thus  assumed  large  personal  obligations  as 
a  member  of  the  Shanghai  Stock  Exchange,  is  entitled  to 
weight  by  way  of  corroboration  of  his  denial  of  knowledge 
of  defendant's  purposes.  These  and  other  inferences,  which 
may  be  logically  drawn  from  evidence  in  the  record,  with 
the  equal  credence  to  which  the  two  parties  are  entitled, 
make  it  somewhat  difficult  to  determine  on  which  side  the 
preponderance  lies. 

There  is  no  evidence  that  the  other  principals  were  deal- 
ing in  differences  or  had  any  agreement  with  the  defendant 
in  reference  thereto.  In  fact  the  evidence  discloses  that 
the  several  principals  had  no  contract  with  each  other  in 
any  of  the  transactions.  But  there  is  evidence  as  to  the 
method  of  settlement  among  brokers.  Such  settlements 
were  made  by  clearing-house  methods,  one  broker's  obliga- 
tions and  credits  being  set  off  against  another's  and  a  bal- 
ance finally  declared  as  between  them.  It  is  granted  that 
this  method  may  be  so  conducted  as  to  be  entirely  just  and 
fair  but  it  is  obvious  also  that  it  is  open  to  abuses  and 
that  it  has  been  adopted  mainly  for  the  convenience  of 
brokers.  The  concealment  of  names  of  principals  and  the 
balancing  of  obligations  on  the  day  of  settlement  tends  to 
make  possible  evasions  of  the  law  and  rights  predicated 


'Irwin  V.  Williar,  110  U.   S.  499,  28  L.  ed.  225. 


SHEKURY  V.  BROOKS,  DEC.  19,  1910.  231 

on  such  customs  or  methods  of  procedure  are  reasonably 
subject  to  severe  scrutiny. 

It  is  contended  that  no  wagering  contract  can  exist  with- 
out a  conjunction  of  parties  with  the  same  vicious  intent; 
that  in  order  to  constitute  a  gaming  contract  in  share  trans- 
actions there  must  be  affirmative  proof  that  both  principals 
intended  to  deal  only  in  differences  and  also  that  no  obliga- 
tion rested  on  either  party  to  accept  delivery  of  shares.  On 
the  facts  of  this  case  the  court  cannot  accept  this  doctrine 
as  well-founded.  It  has  given  careful  consideration  to  the 
able  argument  of  counsel  for  the  plaintiff  on  this  point. 
The  authorities  are  somewhat  conflicting.  In  most  cases 
examined,  however,  the  conflict  is  more  apparent  than  real, 
resting  either  on  varying  conditions  of  fact  or  on  varying 
state  statutes.  In  the  Massachusetts  case  ■'  cited  the  broad 
statement  of  general  principles  does  not  appear  to  have 
been  essential  to  the  disposition  of  the  cause.  The  doctrine 
announced  appears  to  this  Court  to  be  out  of  harmony  with 
the  underlying  principles  recognized  in  the  leading  Federal 
case  above  cited  where  the  rule  is  clarified  and  does  not 
bear  the  narrow  construction  sought  to  be  given  to  it  by 
counsel.  The  jury  considered  the  evidefice  as  a  ivhole  and 
based  its  verdict  thereon,  drawing  all  proper  inferences  as 
to  the  real  intent  of  the  parties. 

If  the  broker  to  whom  orders  were  given  in  this  case 
understood  the  intent  of  his  client  and  assented  thereto, 
he  was  bound  by  knowledge  of  the  unlawful  design  and 
having  made  contracts  in  furtherance  thereof  he  became 
particeps  criminis.  Not  only  would  he  be  tainted  with 
knowledge  of  the  defendant's  unlawful  intent  but  he  would 
become  a  principal  himself  in  so  far  as  determining  the 
character  of  the  contract  between  himself  and  his  client. 
This  grows  logically  out  of  the  mere  necessities  of  the  case. 
Otherwise  it  would  be  rarely  possible  to  prove  a  gambling 
contract  which  has  been  disguised  into  semblance  of  a 
legal  contract. 

But  in  this  record  as  stated  the  oral  testimony  on  the 
material  fact  was  confined  to  the  two  parties  to  the  suit. 

'Barnes  v.  Smith,  159  Mass.  344,  34  N.   E.  403. 


232  I  EXTRATERRITORIAL  CASES. 

The  evidence  thus  given  is  entitled  to  equal  credence. 
However,  the  question  of  fact  as  to  whether  or  not  plaintiff 
was  particeps  criminis  to  defendant's  unlawful  intent  must 
be  determined  upon  the  whole  record.  His  knowledge 
and  assent  thereto  must  be  established  affirmatively  and  in 
the  opinion  of  the  court  the  evidence  submitted  falls  short 
thereof. 

Defendant's  testimony  is  balanced  by  plaintiff's  and  other 
evidence  submitted,  on  either  side,  leaves  that  balance  un- 
disturbed. The  defense  that  the  transactions  were  gam- 
bling contracts  upon  which  the  plaintiff  could  not  recover, 
must  be  rejected. 

In  following  the  instructions  of  defendant,  plaintiff  made 
contracts  of  purchase  with  six  different  parties  two  of 
whom  were  fellow  brokers  and  members  of  the  exchange. 
The  remaining  four  were  not  members  of  the  exchange  but, 
so  far  as  the  record  discloses,  were  selling  their  own  shares. 
The  purchases  from  the  latter  class  were  as  follows : 

P.  Zurn,   200    Anglo-Javas Taels....  32.00 

A.  Tabbah,   200   Siaks do 23.00 

A.  Tabbah,   200    Siaks do 16.00 

W.  Afah,  300  Anglo-Javas.. ..:... do 18.50 

In  all  of  these  four  transactions  the  plaintiff  acted  as 
broker  and  agent  for  both  principals,  receiving  or  claiming 
commissions.     On  cross-examination  he  testified  as  follows : 

Mr.  Brooks — Q.  Mr.  Shekury,  I  have  been  looking  over  the  con- 
tracts here  and  I  see  most  of  them  are  with  outside  parties  such  as 
Afah — they  had  been  clients  of  yours  for  some  time,  had  they  not, 
prior  to  my  dealings  with  you? 

A.  No;  not  Afah. 

Q.  Zurn?  A.  Zurn  was.  Afah  came  after  your  dealings  with 
others. 

Q.  And  you  were  selling  for  him  to  me? 

A.  I  sold  for  him  and  bought  from  him  for  you. 

Q.  And  in  the  same  transaction? 

A.  Yes,  sir. 

Q.  And  Zurn,  the  same? 

A.  Yes,  sir;  and  others  too. 

Q.  You  had  sold  for  them  and  bought  for  me  and  you  were  the 
broker? 

A.  Yes,  sir. 


SHEKURY  V.  BROOKS,  DEC.   19,   1910.  233 

Q.  What  brokerage   charge   did  you   make   on   each   side? 

A.  One  half  per  cent  on  each  side;  that  is  the  custom. 

Q.  You  collected  that  brokerage  from  the  persons  you  sold  the 
shares  for  to  me? 

A.  I  have  collected  from  Tabbah. 

Q.  You  are  suing  me  for  that  brokerage  also? 

A.  No;  we  are  entitled  to  I  per  cent  from  each,  the  seller  and  the 
buyer.     As  a  seller   I   have   collected  from   Tabbah. 

Q.  But  you  are  suing  me  for  that? 

A.  No;  for  my  brokerage  as  a  buyer  for  you. 

Q.  And  you  got  your  brokerage  for  selling  for  Tabbah? 

A.  I  got  i  per  cent  as  my  brokerage. 

Q.  On  two  thousand  taels? 

A.  I  got  ten  taels. 

Q.  When  you  settled  with  him  you  paid  him  ten  taels  less  than  the 
number  of  shares  came  to? 

A.  Yes,  sir. 

Q.  And  you  are  charging  me  brokerage  or  commission  on  the  same 
taels? 

A.  Ye?,  sir. 

Q.  But  still  you  never  paid  that  ten  taels  to  Tabbah? 

A.  No,  sir.  We  are  entitled  to  two  commissions  on  a  transaction 
where  we  buy  and  sell  both.  We  get  i  per  cent  from  the  buyer  and 
2  per  cent  from  the  seller. 

Q.  On   the   same   transaction? 

A.  Yes,  sir. 

We  find  no  rule  of  the  Shanghai  Stock  Exchange  to  this 
effect.  Rule  76  appears  incapable  of  such  construction. 
But  if  such  a  rule  had  been  adopted  by  the  Stock  Exchange 
it  would  be  so  repugnant  to  fundamental  principles  govern- 
ing the  duties  of  agents,  that  it  could  not  be  recognized  as 
having  any  force  as  a  legal  rule.'' 

The  rule  announced  in  the  authorities  cited  that  a  contract 
made  under  such  circumstances  is  voidable  at  the  option 
of  either  party,  is  uniformly  sustained  by  the  courts.  We 
are  unable  to  find  any  decisions  contra.  The  integrity  of 
the  rule  seems  to  be  beyond  dispute  and  the  four  contracts 
referred  to  v^^ith  Zurn,  Tabbah,  and  Afah,  cannot  be  en- 
forced against  the  defendant. 

"Wadsworth  v.  Adams,  138  U.  S.  388,  34  L.  ed.  984;  Mechem, 
Agency,  sees.  454,  455,  943,  952,  972;  Huffcut,  Agency,  110,  111; 
Wald's  Pollock  on  Contracts   (3d  Am.  ed.),  388. 


234  I  EXTRATERRITORIAL  CASES. 

The  two   other   transactions   were   with   other  brokers 

namely, 

N.  E.  Kadoorie, 
100  Anglo-Javas  at  Tls.  32 3,200.00 

Noel,  Murray  &  Company, 
300  Anglo-Javas  at  Tls.  18^ 5,550.00 

In  these  transactions  the  plaintiff  appears  to  have  en- 
tered into  obligations  for  purchase  of  shares  in  accordance 
with  the  rules  of  the  stock  exchange.  He  did  so  in  the 
discharge  of  his  duties  as  agent  imposed  upon  him  by  the 
defendant  who  thus  incurred  a  liability  from  which  he 
cannot  escape  on  the  allegation  that  in  the  ultimate  settle- 
ment of  these  transactions  on  settlement  day  they  were 
not  adjusted  in  the  usual  way  and  in  accordance  with  the 
rules  of  the  exchange.  Defendant's  liability  had  already 
attached  before  he  attempted  to  repudiate  the  contracts 
thus  made  in  his  behalf  and  he  must  indemnify  the  plaintiff 
against  that  liability. 

The  only  difficulty  met  by  the  court  is  in  determining  a 
just  measure  of  damages.  On  this  question  the  state  of 
fact,  as  shown  in  the  record,  is  practically  identical  with 
that  existing  in  case  "  recently  decided  in  the  British  Su- 
preme Court  in  Shanghai.  This  court  has  been  greatly 
aided  in  the  consideration  of  this  case  by  the  analysis  of 
facts  and  the  clear  exposition  of  the  law  applicable  thereto, 
which  appear  in  the  opinion  of  the  learned  Judge,  Sir 
Havilland  de  Sausmarez,  who  presided  in  that  cause.  The 
measure  of  damages  adopted  was  the  difference  between  the 
making  up  price  at  the  June  settlement  and  the  buying 
price,  plus  brokerage,  and  the  same  measure  is  adopted  here 
as  affording  the  only  reasonable  basis  upon  which  the  Court 
can  act.  In  this  case,  as  in  that  cited,  plaintiff  has  furnished 
no  evidence  to  aid  the  court  in  assessing  damages  in  his 
favor,  except  the  price  which  he  was  enabled  to  pay  the 
Shanghai  Stock  Exchange  pool  thru  credit  given  by  the 
Cathay  Trust.  It  is  obvious  to  the  Court  that  the  rights 
and  obligations  of  the  defendant  are   unaffected  by  the 

'  Michael  v.  Carmichael. 


IN  RE  BARCHET'S  ESTATE,  MAR.  21,   1911.  235 

plaintiff's  action  in  that  connexion.     The  list  of  making-up 
prices  is  in  the  record  as  Defendant's  Exhibit  A. 

Judgment  will  be  for  plaintiff  for  Taels  2,793.75  and  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
hi  re  S.  P.  Barchet's  Estate. 

[Special  proceeding  No.  88;   filed  March  21,  1911.] 

SYLLABUS. 
(By  the  Editor.) 

1.  LAND    TITLES:     COURTS:    JURISDICTION.     The    International    Mixed 

Court  of  Shanghai  has  no  jurisdiction  to  set  aside  the  confirma- 
tion of  a  deed  by  a  superior  Chinese  official. 

2.  Id.  :    Under  the  system  of  land  tenure   in   Shanghai,   controversies 

between  Chinese  regarding  title  to  land  included  in  a  Taotai's 
deed  to  an  American,  should  be  adjusted  thru  diplomatic  chan- 
nels. 

Messrs.  Je7'nigan  &  Fessenden,  for  petitioner  Woo  Zung 
Sung. 

William  S.  Fleming,  Esq.,  for  petitioner  Koh  Chee  Wen. 

Thayer,  J.: 

The  proceedings  herein  relate  to  certain  real  property 
registered  in  the  American  Consulate  General  at  Shanghai, 
as  U.  S.  Lot  No.  1102,  property  of  the  late  Stephen  P. 
Barchet,  whose  estate  is  now  in  course  of  administration 
in  this  Court. 

It  appears  from  the  evidence  that  the  said  deceased  was 
not  the  real  or  actual  owner  of  this  land  but  merely  the 
registered  owner.  He  held  it  in  trust  for  one  Hsu  Pei  Chi, 
from  whom  he  received  the  land  and  to  whom  he  executed 
a  declaration  of  trust  in  conformity  with  what  is  repre- 
sented to  be  the  local  system  of  land  tenure  in  Shanghai. 
However,  the  record  title  was  in  Barchet  in  the  form  of 
a  perpetual  lease,  the  evidence  of  which  is  an  instrument 
issued  by  the  Taotai  and  bearing  his  "chop",  the  legal 
effect  of  which  is  a  certification  from,  that  high  Chinese 


236  I   EXTRATERRITORIAL  CASES. 

oflficial  that  the  title  purporting  to  be  conveyed  by  the  in- 
strument is  good  and  sufficient  under  Chinese  law. 

Some  time  in  January,  1910,  one  Koh  Chee  Wen,  other- 
wise known  as  Koh  Kwei  Foh,  filed  a  petition  in  this 
Court,  alleging  that  he  was  the  actual  owner  of  said  land; 
that  it  had  come  to  him  by  inheritance;  that  the  said 
Barchet  had  no  legal  or  equitable  interest  therein,  and 
that  the  registration  thereof  in  the  American  Consulate 
had  been  effected  without  the  petitioner's  knowledge  and 
consent  and  in  fraud  of  his  rights.  The  petitioner  asked 
for  a  decree  that  he  is  the  sole,  equitable  and  beneficial 
owner  of  said  land  and  that  the  said  Barchet  at  the  time 
of  his  death  was  his  trustee.  He  asked  that  the  executrix 
of  the  decedent's  will  be  directed  to  assign  and  transfer 
the  registered  title  and  deed  of  said  land  to  a  nominee 
or  nominees  of  said  petitioner.  Due  notice  of  this  proceed- 
ing was  given,  under  the  direction  of  the  Court,  to  the 
executrix  and  to  the  party  claiming  title  under  decedent's 
declaration  of  trust  which,  it  is  alleged,  had  been  trans- 
ferred by  Hsu  Pei  Chi  to  one  Woo  Zung  Seng. 

The  cause  came  on  for  hearing:  The  executrix  stood 
neutral,  filed  no  answer  and  offered  no  opposition.  The 
petitioner  submitted  in  evidence  a  copy  of  a  judgment 
rendered  in  the  International  Mixed  Court  of  Shanghai 
on  October  30,  1909,  wherein  the  same  tract  was  involved, 
the  defendant  therein  being  in  possession  and  claiming 
under  a  lease  from  the  petitioner  in  this  case.  Judgment 
was  adverse  to  the  plaintiff  and  is  here  quoted  in  full : 

"The  defendant  of  this  case  has  occupied  a  piece  of  land  owned 
by  the  plaintiff  and  constructed  a  building  thereon  without  the  con- 
sent of  the  plaintiff.  The  plaintiff  endeavored  to  prevent  the  de- 
fendant from  constructing  the  building,  but  the  defendant  refused 
to  stop  the  work.  Therefore,  the  plaintiff  filed  a  petition  in  this 
Court  against  the  action  of  the  defendant.  Subsequently  one  Kwoh 
Kwei  Foh  alias  Koh  Chi  Fen,  represented  by  Mr.  Fleming,  appeared 
before  thf  Mixed  Court  and  stated  that  the  land  in  dispute  was  left 
for  him  by  his  father.  He  had  leased  it  to  the  Chiang  Sun  Match 
Co.,  for  the  purpose  of  constructing  a  factory.  He  held  the  fangtan 
and  the  tax  receipts  for  the  same  lot.  He  never  sold  his  property  to 
anybody  and  did  not  know  how  the  plaintiff  registered  it  as  a  U.  S. 
Lot  and  obtained  the  title  deed.  He  found  that  some  unlawful  tipao, 
Chow  Wen  Pang,  Pah  Chi  Tzen  and  Hsu  Lu  Yai,  had  intrigued  one 


IN  RE  BARCHET'S  ESTATE,  MAR.   21,   1911.  237 

Hsu  Pei  Chi  to  deceive  the  authority  and  have  the  land  in  question 
shenkoed  in  Hsu's  name.  This  land  was  apparently  stolen  and  sold 
by  them. 

The  Court  believes  that  the  land  is  owned  by  Koh  Kwei  Foh  and 
the  land  was  certainly  left  by  his  father,  because  he  can  produce  the 
fangtan  and  the  tax  receipts  for  the  land.  Apparently  some  men 
stole  this  land  and  sold  it  to  Dr.  Barchet.  Dr.  Barchet  has  secured 
the  title  deed. 

In  the  Settlement  the  title  deed  is  a  good  and  sufficient  proof  as 
to  the  ownership  of  any  lot.  It  could  not  be  cancelled  at  any  time. 
Otherwise,  the  foreign  land-owners  in  the  settlement  would  create 
a  serious  diplomatic  dispute.  The  Chiang  Sun  Match  Factory  has 
already  constructed  the  building.  They  could  not  give  up  the  con- 
struction work.  Koh  Kwei  Foh  is  hereby  ordered  to  consult  with 
the  plaintiff  and  to  settle  it  themselves,  within  three  months.  If 
Koh  Kwei  Foh  does  not  consult  and  settle  this  dispute  with  the  plain- 
tiff within  three  months  he  must  have  the  building  removed.  Koh 
Kwei  Foh  is  allowed  to  file  a  petition  in  this  Court  against  those  who 
sold  their  land  secretly  and  unlawfully.  The  Court  will  have  these 
.  defendants  tried  before  the  evening  Court,  in  some  most  just  way. 

If  the  plaintiff  and  the  defendant  will  not  surrender  to  this  judg- 
ment they  are  authorized  to  make  an  appeal  to  the  higher  tribunal 
within  two  weeks."  ^ 

This  Court,  at  the  time,  accepted  that  judgment  as  con- 
clusive on  the  questions  involved  and  as  a  determination 
of  the  controversy  between  two  Chinese  subjects  by  a  com- 
petent Chinese  Court,  and,  on  April  22,  1910,  ordered  a 
decree  entered  in  favor  of  the  petitioner  granting  his  several 
prayers.  Later,  on  the  same  day,  Woo  Zung  Seng,  who 
claimed  to  be  the  assignee  of  Hsu  Pei  Chi  of  the  declaration 
of  trust  executed  to  him  by  the  said  Barchet,  filed  in  the 
Clerk's  office  a  petition  setting  forth  certain  grounds  upon 
which  he  prayed  that  the  matter  involved  in  the  petition 
of  Koh  Chee  Wen  be  reopened  and  the  decree  be  reviewed 
and  the  last  petitioner  be  given  opportunity  to  be  heard  by 
counsel.  This  latter  petition  was  granted  and  counsel  have 
been  heard  both  orally  and  by  briefs. 

Upon  review  of  the  record  the  Court  is  satisfied  that 
the  decree  directed  to  be  entered  was  not  justified  by  either 
the  law  or  the  facts.  This  Court  has  no  jurisdiction  over 
controversies  between  Chinese  subjects.  It  sufficiently 
appears   that   Barchet   had   at   the   most   only   a   nominal 

'  Barchet  v.  Chiang  Sun  Match  Factory. 


238  1  EXTRATERRITORIAL  CASES. 

interest  in  said  land,  viz.,  such  commissions  as  he  might 
have  been  entitled  to  for  services  rendered  as  trustee  of 
the  actual  owner.  This  fact  is  admitted  by  both  parties  to 
the  present  controversy.  This  Court  has  to  deal  alone  with 
the  Taotai's  deed  and  such  deed,  it  now  appears  to  the 
Court,  must  be  regarded  as  legally  effective  unde.'  Chinese 
law,=  until  it  is  set  aside  or  declared  to  be  invalid  by  some 
competent  Chinese  couit. 

Two  questions  now  present  themselves:  (1)  Is  a  judg- 
ment of  the  Mixed  Court  in  Shanghai  on  this  matter  final 
and  conclusive  of  this  controversy  and  entitled  to  be  so 
regarded  by  a  foreign  court?  (2)  Was  the  particular  judg- 
ment in  this  matter  sufficient  in  terms  to  justify  its  ac- 
ceptance as  a  final  judgment  of  the  controversy  between 
these  two  Chinese  subjects? 

These  material  and  vital  questions  were  not  fully  pre- 
sented to  the  Court  at  the  hearing  on  the  original  petition. 
Excuse  is  given  for  the  present  petitioner's  default  in  ap- 
pearance which  the  Court  accepts  as  sufficient.  The  Court 
believes  that  both  questions  must  be  answered  in  the 
negative. 

The  purpose  for  which  the  Mixed  Court  was  organized 
and  its  procedure,  are  not  clearly  defined.  It  seems  to 
have  been  adopted  as  a  tribunal  for  the  purpose  of  trying 
cases  in  which  the  defendants  were  Chinese  and  into  which 
some  foreign  interest  intruded.  It  may  be  that  it  was  a 
proper  tribunal  in  which  the  suit  of  Barchet  versus  Chiang 
Sun  Match  Factory  should  have  been  first  instituted.  But 
however  that  may  be  it  is  not  shown  to  this  Court  that 
the  Mixed  Court  possessed  any  power  to  review  and  set 
aside  the  Taotai's  action  in  approving  the  deed  to  Barchet. 
On  the  contrary,  it  is  contended  that  the  Taotai  is  a  judicial 
officer  who  is  superior  in  rank  to  the  Mixed  Court  magis- 
trates and  who  exercises  control  and  appellate  jurisdiction 
over  the  Mixed  Court  as  respects  controversies  that  are 
purely  Chinese.  On  the  showing  made  in  this  record  the 
judgment  of  the  Mixed  Court  cited  cannot  be  regarded  as 
a  final  adjudication  of  the  controversy  and  for  this  reason 

'  See  Macdonald  v.  Anderson,  ante,  p.  77.     Ed. 


IN  RE  BARCHET'S  ESTATE,  MAR.  21,   1911.  289 

under  familiar  rules  such  judgment  cannot  be  given  con- 
trolling effect  in  a  foreign  court. 

This  conclusion  is  strengthened  when  careful  considera- 
tion is  given  to  the  terms  of  said  judgment.  Therein  the 
Court  appears  to  have  been  satisfied  on  the  evidence  before 
it  that  the  defendant  (Koh  Kwei  Foh)  was  the  real  owner 
of  the  land  and  that  the  land  had  been  stolen  and  sold  to 
Dr.  Barchet.  But  the  Court  at  the  same  time  apparently 
recognized  that  Dr.  Barchet's  title  was  not  assailable  in 
that  Court.     It  said: 

"In  the  settlement  the  title  deed  is  a  good  and  sufficient  proof 
as  to  the  ownership  of  any  lot.  It  could  not  be  cancelled  at  any- 
time. Otherwise,  the  foreign  land  owners  in  the  settlement  would 
create  a  serious  diplomatic  dispute." 

This  must  be  construed  as  a  i  ecognition  by  the  Court  that 
it  was  without  authority  to  enter  any  judgment  affecting 
the  integrity  of  any  foreign  deed  which  had  received  the 
chop  of  the  Taotai.  The  order  directing  the  entry  of  judg- 
ment in  favor  of  the  petitioner  Koh  Kwei  Foh  is  rescinded. 

It  remains  to  be  determined  what  action,  if  any,  should 
be  taken  by  the  executrix  of  the  Barchet  estate  by  reason 
of  the  state  of  facts  set  forth  herein.  The  estate  stands 
neutral  between  two  contending  Chinese  claimants. 

It  is  obvious  that  the  trusteeship  standing  in  the  name 
of  the  testator  at  the  time  of  his  decease  should  be  ter- 
minated at  the  earliest  possible  date  and  that  the  duties 
and  obligations  thereof  should  be  disassociated  from  the 
administration  and  settlement  of  said  estate  and  not 
obstruct  its  final  settlement.  For  this  purpose  an  order  will 
be  entered  directing  the  executrix  to  transfer  the  title 
standing  in  the  name  of  Dr.  Barchet  to  some  third  party, 
nominated  by  counsel  of  the  two  petitioners  with  the  ap- 
proval of  the  Court,  who  shall  hold  such  title  as  trustee 
under  its  direction.  Upon  the  selection  of  such  trustee  and 
after  conveyance  to  him  of  the  said  title,  a  separate  and 
further  order  will  be  entered  requiring  him  as  such  to 
submit  a  full  statement  of  the  issues  raised  in  this  case, 
to  the  American  Consul  General,  with  a  request  that  he 
submit  the  matter  to  the  Shanghai  Taotai  for  appropriate 
action. 


240  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Edward  Bell,  Plaintiff,  v.  W.  E.  Sauer,  Defendant. 

[Civil   Action   No.   91;    filed   April    7,   1911.] 

SYLLABUS. 
(By  the  Editor.) 

1.  CONTRACTS:   EVIDENCE  reviewed  and  found  to  establish  a  contract 

for  the  purchase  of  shares. 

2.  Id.  :    Statute  of  Frauds.     By  the  weight  of  American   authority 

such  a  contract  is  within  the  Statute  of  Frauds. 

3.  Id.  :  Id.  :  The  Memorandum  required  by  the  statute  need  be  signed 

only  by  the  party  against  whom  the  contract  is  to  be  enforced. 

Messrs.  Jernigan  &  Fessenden,  for  plaintiff. 
William  S.  Fleming,  Esq.,  for  defendant. 

Thayer,  J.: 

This  is  an  action  to  recover  damages  alleged  to  have  been 
suffered  by  reason  of  breach  of  contract  for  the  purchase 
of  certain  rubber  shares.  The  evidence  shows  that  on  oi' 
about  March  31,  1910,  plaintiff  was  informed  that  de- 
fendant desired  to  purchase  one  hundred  Anglo-Java 
rubber  shares.  This  information  was  communicated  to 
plaintiff  by  a  third  party  and  under  his  instructions  plain- 
tiff's brother,  in  his  presence  and  on  the  day  named,  had 
a  conversation  over  the  telephone  with  defendant,  advised 
him  that  he  could  have  one  hundred  shares  of  said  stock 
at  Taels  42  per  share  for  the  June  delivery  of  1910, 
and  asked  him  to  accept  and  confirm  said  tender  in  writing 
if  he  desired  the  shares  on  said  terms. 

On  the  day  after  said  conversation,  the  defendant  for- 
warded to  the  plaintiff  a  written  confirmation  in  the  fol- 
lowing terms : 

"I  hereby  confirm  having  purchased  from  Mr.  Edward  Bell  one 
hundred  (100)  Anglo-Java  Rubber  E.  X.  shares  at  Tls.  (42)  forty- 
two  each  for  June  delivery,  1910." 

Defendant's  version  of  the  telephone  conversation  re- 
ferred to  differs  from  that  given  by  the  plaintiff  in  this 
respect.  He  asserts  that  he  called  plaintiff's  office  and  had 
a  conversation  with  plaintiff's  brother,  advised  him  that 


BELL  V.  SAUER,  APRIL  7,  1911.  241 

he  desired  to  purchase  one  hundred  shares  of  Anglo-Javas 
and  was  advised  that  if  he  would  send  in  a  confirmation 
statement  or  note  his  order  would  probably  be  accepted 
and  that  following  such  statement  he  did  forward  to  the 
plaintiff  the  said  confirmatory  memorandum. 

In  the  face  of  this  conflict  the  Court  must  observe  that 
plaintiff's  testimony  is  corroborated  by  that  of  his  brother, 
who  conducted  said  conversation  over  the  telephone  and  by 
the  wording  of  the  memorandum  wherein  defendant  says,  "I 
hereby  confirm  having  purchased,"  etc.  On  its  face  this 
would  appear  to  relate  to  a  transaction  which  had  been 
initiated  by  a  tender  from  the  plaintiff  and  which  had 
resulted  in  a  verbal  contract  of  which  the  written  memo- 
randum was  to  operate  as  a  confirmation,  A  further  com- 
munication was  made  by  defendant  to  plaintiff  upon  the 
same  date,  in  which  he  asked  the  plaintiff  to  let  him  have 
two  hundred  additional  shares  of  Anglo-Javas  "at  the  same 
price  as  those  just  contracted,  i.  e.,  Taels  42  per  share."  On 
the  following  date,  April  2,  he  wrote  the  plaintiff  with- 
drawing this  request  for  the  additional  two  hundred  shares 
and  stating  in  the  same  letter  "you  have  my  confirmation 
of  purchase  of  yesterday's  date  which  of  course  stands 
good." 

The  matter  quoted  from  these  two  letters  corroborates 
strongly  the  testimony  submitted  in  plaintiff's  behalf  as 
to  the  fact  of  an  actual  contract  having  been  made  between 
the  parties  for  the  purchase  and  sale  of  one  hundred  shares 
of  Anglo-Javas.  The  statements  in  writing  made  by  de- 
fendant are  not  susceptible  of  any  other  interpretation 
than  that  he  clearly  and  distinctly  understood  that  he  had 
entered  into  a  contract  with  the  plaintiff  for  such  pur- 
chase. 

II. 

Defendant  claims  that  the  contract  is  within  the  Statute 
of  Frauds  and  is  not  enforcible  because  the  amount  involved 
exceeds  fifty  dollars  and  the  memorandum  was  not  suffi- 
cient. The  property  involved  in  this  transaction  consisted 
of  shares  in  a  corporate  company  whose  capital  was  prin- 
cipally real  estate. 

14008  O.  W. 16 


242  I  EXTRATERRITORIAL  CASES. 

There  is  conflict  of  authority  in  American  decisions  as  to 
whether  contracts  for  the  sale  of  shares  of  stock  in  a  cor- 
poration are  within  the  Statute  of  Frauds.  Counsel  for 
the  defendant  has  cited  a  case/  in  which  bank  stock  is 
declared  within  the  statute  but  a  later  expression  of  the 
same  court  -  is  to  the  contrary,  and  in  both  cases  the  state- 
ments were  obiter  dicta.  However,  the  weight  of  author- 
ity in  the  United  States  is  that  contracts  for  the  sale  of 
stock  are  within  the  Statute  of  Frauds.^ 

We  have  in  this  case  a  contract  which  was  initiated  and 
completed  by  verbal  offer  and  acceptance  and  which  is 
evidenced  specifically  in  writing  by  one  of  the  parties.  Sec- 
tion 17  of  the  Statute  of  Frauds,  observes  Benjamin,* 

"requires  the  writing  to  be  'signed  by  the  parties  to  be  charged,'  etc., 
and  the  4th  section,  'by  the  party  to  be  charged,'  etc.  Under  both 
sections  it  is  well  settled  that  the  only  signature  required  is  that  of 
the  party  against  whom  the  contract  is  to  be  enforced.  The  contract, 
by  the  effect  of  the  decisions,  is  good  or  not,  at  the  election  of  the 
party  who  has  not  signed."'' 

In  the  one  case  "^  to  be  assumed  in  conflict,  the  decision 
did  not  rest  upon  any  interpretation  of  the  Statute  of 
Frauds,  since  there  was  a  lack  of  mutuality  and  the  con- 
tract would  fail  by  reason  of  that  defect  and  not  by  reason 
of  its  failure  to  be  reduced  to  writing.  The  cases  cited  in 
opposition  to  the  general  doctrine  cannot  be  accepted,  the 
conflict  being  one  of  appearance  rather  than  of  reality. 

Under  the  authority  cited  the  Court  must  hold  that  the 
contract  as  established  by  the  evidence  in  the  record  satis- 
fies the  requirements  of  the  Statute  of  Frauds.  It  only 
remains  to  determine  the  amount  of  damages  to  which  the 
plaintiff  is  entitled  by  reason  of  the  breach  of  contract. 

'Colvin  V.  Williams,  3  Harris  &  Johnson    (Md.)    38. 

'Webb  V.  Baltimore,  77  Md.  92. 

'Am.  &  Eng.  Ency.  of  Law  (2nd  edition),  XXIX,  9G1,  and  cases 
cited;  Browne,  Statute  of  Frauds   (4th  ed.),  sec.  258. 

*  Sales   (7th  Am.  ed.),  sec.  255. 

'  See  also  p.  234  of  the  same  work;  Allen  v.  Bennett,  3  Taunt.  169; 
Thornton  v.  Kempster,  5  Taunt.  786;  Lathoarp  v.  Bryant,  2  Bing 
(N.  C.)  735,  3  Scott  238;  Reuss  v.  Picksley,  L.  R.  1  Exch.  342,  35  L. 
J.  Exch.  218. 

•Wilkinson  v.  Heavenrich,  58  Mich.  574,  26  N.  W.  139. 


NEE  CHANG  MOW  V.  ANDREWS  ET  AL.,  NOV.  6,  1911.      243 

The  evidence  offered  respecting  the  amount  of  damage 
suffered  is  not  sufficient  to  give  much  assistance  to  the 
Court.  The  contract  was  for  the  June  delivery  which 
could  mean  nothing  else  than  the  delivery  day  in  that 
month  fixed  by  the  Shanghai  Stock  Exchange.  In  the  ab- 
sence of  satisfactory  proof  the  Court  is  unable  to  find  any 
more  reasonable  basis  for  ascertainment  of  damages  than 
that  furnished  by  the  making-up  price  adopted  by  the  Stock 
Exchange  for  the  June  settlement,  which  for  Anglo-Javas 
was  fixed  at  Taels  fifteen. 

Judgment  will  be  entered  for  plaintiff  for  Taels  twenty- 
seven  hundred  and  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Nee  Chang  Mow,  Plaintiff,  v.  Andrews  &  George, 
Defendants. 

[Civil  Action  No.  98;   filed  November  G,   1911.] 

SYLLABUS. 
(By  the  Editor.) 

1.  JITDGMEKTS:    ENFORCEMENT.     A  proceeding  to  enforce  a  judgment 

is  one  at  law. 

2.  Id.  :    Id.  :    Misjoinder.     Such   a   proceeding  cannot  be   joined   with 

one  to  recover  on  an  independent  claim. 

3.  NE   EXEAT.     Grounds  for  writ  of,  held  insufficient. 

Geo.  F.  Curtis,  Esq.,  for  plaintiff. 

Messrs.  Jernigan  &  Fessenden  and  C.  R.  Holcomb,  for 
defendants. 

Thayer,  J.: 

The  complainant  is  proceeding  by  a  bill  in  equity  for 
(1)  Enforcement  of  a  judgment  alleged  to  have  been  ren- 
dered in  the  American  Consular  Court  at  Shanghai,  China, 
on  January  8,  1903;  (2)  an  accounting  for  a  certain 
sum  of  money  alleged  to  be  due  from  defendants  to  the 
complainant  and  which  the  Consular  Court,  it  is  alleged, 
recites  as  being  the  subject  of  suit  between  another  party 
and  refuses  to  make  any  award  pending  said  suit;  (3)  a 
writ  of  7ie  exeat  repubhca. 


244  I   EXTRATERRITORIAL   CASES. 

After  filing  original  bill  and  after  filing  of  answer  by- 
defendant  and  in  absence  of  objection  from  defendants, 
complainant  was  allowed  to  file  an  amended  bill  to  which 
defendants  have  demurred. 

1.  As  to  amount  covered  by  alleged  judgment  (Tls. 
2,370.48  with  interest  and  costs)  it  is  not  alleged  that  execu- 
tion was  ever  had  or  attempted  to  be  had.  If  judgment  was 
obtained  as  alleged,  it  was  rendered  in  the  American  Con- 
sular Court,  which  court  at  that  time  had  presumal)ly  full 
jurisdiction  and  continued  to  have  full  jurisdiction  for 
about  three  years  thereafter  until  the  United  States  Court 
for  China  was  created  on  June  30,  1906,  at  which  time 
the  Consular  Court  was  deprived  of  jurisdiction  in  a  civil 
cause  where  the  amount  involved  exceeded  five  hundred 
dollars,  U.  S.  currency. 

Execution  not  having  been  had  in  the  trial  court  and 
that  court  meanwhile  having  lost  jurisdiction  by  reason  of 
the  amount  involved,  it  probably  follows  that  any  further 
proceedings  in  the  matter  would  have  to  be  taken  in  this 
court.  The  action  of  this  court  would  wholly  depend  upon 
the  case  as  presented. 

It  is  fundamental  that  action  for  the  enforcement  of  a 
judgment  is  one  at  law.  It  is  clear  that  plaintiff's  remedy  is 
a  simple  action  in  debt.  Certainly  no  ground  is  laid  in  the 
bill  that  the  remedy  at  law  on  this  judgment  will  be  in- 
adequate. 

2.  As  to  amount  alleged  to  have  been  paid  to  defendants 
by  the  complainant,  it  appears  not  to  have  been  embraced 
in  the  judgment.  So  far  as  the  bill  discloses,  the  amount 
claimed  is  for  a  certain  amount  of  money  alleged  to  have 
been  paid  to  the  defendants  by  the  complainant.  It  would 
appear  that  the  remedy  would  be  in  an  action  at  law 
altho  the  allegations  made  in  reference  thereto  are  in- 
sufficient to  admit  of  any  specific  holding  on  that  point. 
The  Court  is  satisfied  on  the  averments  made  in  the  bill 
that,  whatever  remedy  may  be  appropriate  for  this  item, 
whether  at  law  or  in  equity,  a  bill  in  equity  joining  this 
item  of  claim  with  a  judgment  claim,  is  fatally  defective. 

3.  It  follows  that  no  case  is  presented  upon  which  the 
Court  can  grant  a  writ  ne  exeat  republica. 


ROSS  V.  ISRAEL,  DEC.   9,   1911.  245 

As  affecting  the  action  of  the  Court  on  this  demurrer, 
consideration  has  been  given  to  the  fact  that  nearly  nine 
years  have  been  allowed  by  the  claimant  to  elapse,  since 
judgment  in  the  Consular  Court,  without  execution.  While 
it  is  possible  that  claimants'  legal  rights  may  not  be  barred 
by  this  long  delay,  such  delay  breeds  staleness  and  tends 
to  minimize  ground  upon  which  to  appeal  to  the  conscience 
of  the  Court. 

The  demurrer  is  sustained.     The  bill  is  dismissed. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Eric  M.  Ross,  Liquidator  of  the  Talang  Rubber  Estates, 
Limited,  Plaintiff,  V.  Arthur  J.  Israel,  Defendant. 

[Civil  Action  No.  99;   filed  December  9,  1911.] 

SYLLABUS. 
(By  the  Editor.) 

1.  PLEADING:    PARTICULARITY.     A    petition   by  the    "liquidator"   of   a 

foreign  corporation  should  allege  the  particulars  of  his  appoint- 
ment and   authority. 

2.  Id.  :  Fraud  should  be  specifically  and  clearly  pleaded. 

Messrs.  Jernigan  &  Fessenden,  for  plaintiff. 
W.  S.  Fleming,  Esq.,  and  Ellis,  Hays  &  Godfrey,  for  de- 
fendant. 

Thayer,  J.: 

This  cause  came  on  for  argument  upon  demurrer  to  the 
complaint,  the  first  ground  being  that  the  plaintiff  has  no 
legal  capacity  to  sue.  The  petition  avers  that  plaintiff  is 
a  British  subject  and  the  duly  appointed  liquidator  of  the 
Talang  Rubber  Estates,  Limited,  a  British  corporation, 
duly  organized  and  existing  under  the  laws  of  the  British 
Crown  Colony  of  Hongkong. 

The  objection  rests  upon  the  general  rule  in  pleading 
that  the  exclusive  right  of  action  rests  in  the  party  who 
holds  the  strict  legal  title.  The  petition  in  this  cause  re- 
cites the  claimant  as  "Liquidator,"  a  term  little  known  in 
American  law,  but  which  undoubtedly  corresponds  to  the 


246  I   EXTRATERRITORIAL   CASES. 

office  of  Receiver,  familiar  to  American  jurisprudence. 
While  there  is  some  conflict  of  authority  in  different  Amer- 
ican jurisdictions  as  to  the  right  of  action  resting  in  a 
Receiver,  the  tendency  is  to  recognize  such  right.  But  in 
the  present  case  the  petition  alleges  that  the  corporation 
is  a  foreign  one  and  that  plaintiff  has  been  duly  appointed 
liquidator  thereof.  Such  appointment  must  have  been 
made,  if  at  all,  in  obedience  to  the  provisions  of  some 
foreign  law  and  as  the  result  of  process  in  some  foreign 
court.  In  order  to  perfect  the  pleading  and  give  such  notice 
as  under  general  rules  the  defendant  is  entitled  to  have, 
it  would  seem  essential  that  the  petition  should  recite  not 
only  the  general  fact  of  such  appointment  but  the  par- 
ticular foreign  court  in  which  the  proceedings  were  had, 
the  date  thereof  and  the  statute  or  law  under  which  it 
was  made.  This  fuller  statement  appears  necessary  in 
order  that  the  defendant  may  be  placed  in  a  position  to 
raise  such  objections  as  to  him  may  seem  appropriate  either 
to  the  jurisdiction  of  the  court  or  to  the  legal  effectiveness 
of  the  said  proceedings.  Great  precision  appears  neces- 
sary because  the  corporation  is  a  foreign  one,  controlled 
and  regulated  by  the  provisions  of  foreign  law.  Assuming 
that  the  first  paragraph  of  the  petition  should  be  amended 
as  suggested  it  would  appear  immaterial  whether  the 
claimant  in  this  case  is  recited  as  Eric  M.  Ross,  liquidator 
of  the  company,  or  the  company  be  recited  as  by  Eric  M. 
Ross,  liquidator. 

The  other  grounds  for  demurrer  are  more  generally  stated 
as  relating  to  lack  of  precision  and  fullness  of  statement. 
A  large  amount  of  damages  is  claimed  upon  the  averment 
that  plaintiff  has  been  induced  to  enter  into  a  contract  by 
fraudulent  misrepresentations  on  the  part  of  defendant  and 
his  agent.  It  is  a  fundamental  rule,  both  at  law  and  in 
equity,  that  where  a  cause  of  action  arises  upon  an  allega- 
tion of  fraud,  the  mere  general  averment  of  fraud  is  in- 
sufficient. There  must  be  a  full  and  specific  setting  out 
of  the  facts  upon  which  the  charge  is  predicated.  The 
statement  must  be  clear  and  concise  and  made  with  suffi- 
cient particularity  to  apprise  the  defendant  of  what  he  is 
called  upon  to  answer.     Paragraphs  6,  8,  9  and  10  of  the 


UNITED  STATES  V.  FERNANDEZ,  DEC.  2  0,  1911.  247 

petition  obviously  do  not  comply  with  this  fundamental 
rule. 

It  seems  clear  also  that  the  defendant  is  entitled  to  have 
notice  in  the  petition  of  what  specific  misrepresentations 
have  been  made  by  him  and  what  are  alleged  to  have  been 
made  by  the  party  who  is  asserted  to  have  been  his  agent, 
how  these  representations  were  made,  whether  orally  or  in 
writing,  where,  and  the  approximate  dates  when  they  were 
made.  In  other  words  the  particulars  of  these  transactions, 
upon  which  the  plaintiff  relies  as  fixing  the  responsibility 
for  damage  alleged  to  have  been  suffered,  should  be  set 
forth  specifically. 

For  the  reasons  stated  the  demurrer  is  sustained  and 
permission  is  granted  to  the  petitioner  to  amend  his  peti- 
tion in  accordance  herewith. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Frank  Fernandez. 

[Criminal  Cause  No.  52;  filed  December  20,  1911.] 

SYLLABUS. 
(By  the  Editor.) 

GAMBLING.  Mere  possession  of  a  gambling  device  in  a  place  suitable 
for  its  operation  constitutes  an  offense  under  the  law  in  force 
in  this  jurisdiction. 

Dr.  F.  E.  Hinckley,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
Stirling  Fessenden,  Esq.,  for  defendant. 

Thayer,  J.: 

The  language  of  the  statute  ^  is  such  that  the  Court  must 
assume  that  the  offense  that  Congress  had  in  mind  was  the 
operation  of  a  table  or  of  some  gambling  device  or  the 
setting  up  of  such  a  table  for  the  purpose  of  its  operation. 
That  was  the  mischief  intended  to  be  guarded  against,  as 
described  in  section  868.     Now  it  does  not  follow  that  in 

'  Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.,  Stats,  at 
Large,  Ch.  854,  sees.  865  et  seq.,  p.  1331. 


248  I  EXTRATERRITORIAL  CASES. 

every  case  where  a  charge  of  this  sort  is  brought  it  is 
essential  in  order  to  secure  conviction  to  show  by  positive 
proof  that  a  device  of  this  character,  being  in  the  posses- 
sion of  the  party  accused,  has  actually  been  operated,  or 
that  someone  has  seen  it  in  operation.  Possession,  along 
with  other  circumstances,  may  be  construed  as  a  guilty 
possession — as  a  possession  of  someone  who  intended,  if 
a  suitable  opportunity  came,  to  operate  it  for  gaming  pur- 
poses. If  intent  to  use  the  device  for  gaming  purposes  is 
sufficiently  disclosed  by  the  evidence,  a  violation  of  the  law 
is  established. 

In  this  case  the  machine,  which  is  obviously  within  the 
definition  of  a  gambling  machine,  was  in  the  dining-room 
next  to  the  bar-room,  in  a  place  where  naturally  a  machine 
of  that  sort  would  be  located  if  intended  to  be  operated. 
That  is  quite  difi'erent  than  if  it  were  in  some  place  to 
which  the  public  did  not  have  access.  It  was  in  a  place 
convenient  for  operation.  But  here  is  a  case  where  the 
government  shows  no  operation.  At  best,  the  evidence  dis- 
closed the  possession  of  this  machine  by  the  accused  for  a 
very  short  time.  The  Court  is  impressed  with  the  fact 
that  probably  this  machine  never  was  operated.  Still  the 
accused  cannot  escape  certain  inferences  that  must  be 
drawn,  it  seems,  by  reason  of  the  continuance  in  his  posses- 
sion of  such  a  machine.  It  was  there  and  could  have  been 
operated  if  the  opportunity  and  temptation  were  strong 
enough.  The  maintenance  of  such  possession  is  not  only 
sufficient  to  excite  the  strong  suspicion  of  a  purpose  to 
operate  it  unlawfully  but  justifies  an  inference  that  there 
was  such  a  purpose. 

Defendant  is  entitled,  of  course,  to  the  benefit  of  all  doubts. 
The  intention  of  Congress  as  to  the  interpretation  of  this 
provision,  however,  is  clearly  stated  in  section  868,  altho 
the  general  provisions  of  law  are  that  penal  statutes  shall 
be  construed  strictly.  The  Court  is  satisfied  that  if  there 
has  been  any  violation  of  the  law  it  has  not  been  a  serious 
one,  but  still  the  presence  of  this  machine,  in  a  place  where 
it  could  be  easily  utilized  in  violation  of  the  law,  is  reason- 
ably intended  to  be  prohibited. 

Under  the  circumstances  the  Court  will  find  the  defendant 


STEINER  V.  FRAZAR  &  CO.,  DEC.  19,  1911.  249 

guilty  but  the  offense  is  of  such  a  character  that  he  believes 
that  a  minimum  penalty  is  justified  and  will  operate  as  a 
notice  to  every  one  interested  in  the  possession  of  machines 
of  this  character  that  their  presence  in  places  where  they 
can  be  utilized  will  not  be  tolerated  by  the  Court  if  brought 
to  its  attention. 

A  fine  of  twenty-five  dollars  is  imposed. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
R.  W.  Steiner,  Plaintiff,  v.  Frazar  &  Company,  Defendant. 

[Civil  action  No.  100;  filed  December  19,  1911.] 

SYLLABUS. 
(By  the  Editor.) 

1.  CONTRACTS:    FORMATION.     To  convert  an  offer  into  a  contract  the 

acceptance  must  be  unconditional. 

2.  Id.  :  Quantum  Meruit.     One  vi^ho  performs  service  for  another  w^ith- 

out  a  definite  agreement  is  entitled  to  reasonable  compensation. 

E.  S.  Moberly  Bell,  Esq.,  for  plaintiff. 
Messrs.  Jernigan  &  Fessenden,  for  defendant. 

Thayer,  J.: 

This  is  an  action  for  damages  alleged  to  have  been  suf- 
fered by  reason  of  breach  of  contract.  The  plaintiff  has 
had  long  experience  in  the  silk  trade  in  China.  While 
residing  in  Zurich,  Switzerland,  he  was  approached  by  a 
representative  of  defendant  with  reference  to  entering  its 
employ  in  Shanghai  as  an  assistant  silk  inspector.  Under 
date  of  April  15,  1910,  defendant  addressed  the  following 
letter  to  plaintiff: 

"R.  W.  Steiner,  Esq., 

Zurich. 
Dear  Sir: 

We  offer  you  an  engagement  as  Assistant  Silk  Inspector  for  a 
period  of  three  years  on  the  following  terms:  Salary  for  First  year, 
Tls.  300  per  month;  Salary  for  Second  year,  Tls.  325  per  month; 
Salary  for  Third  year,  Tls.  350  per  month. 

Your  salary  will  begin  upon  your  arrival  in  Shanghai.  We  would 
pay   your   passage   from   Zurich   to    Shanghai   and   also    your   return 


250  I   EXTRATERRITORIAL  CASES. 

passage  at  the  expiry  of  your  Agreement.     Your  former  experience 
in  Shanghai  makes  it  unnecessary  to  detail  your  duties. 

We  shall  expect  to  hear  from  you  by  cable  and  enclose  a  codegraph 
to   enable    you    to    wire    us    by    A. B.C.    code;    in    case    you    decide    to 
come  please  go  to  Lyons  and  make  the  acquaintance  of  our  Agent, 
Messrs.  Pizard  Freres. 
Youi-s   faithfully, 

Frazar  &  Co." 

On  May  5,  1910,  after  receipt  of  this  letter,  plaintiff 
cabled  to  defendant  a  message  in  code  as  follows : 

"Accept  the  offer  subject  to  what  commission  will  be  allowed — 
as  arranged  with — If  you  cannot  arrange  try  to  increase  the  amount. 
Answer  by  tel.  A. B.C.  5th." 

On  May  7,  1910,  defendant  cabled  answer  as  follows: 
"Commission  will  be  paid — as  arranged  with — on  Pongee." 

Dn  May  10,  1910,  plaintiff  cabled  to  defendant  company 
as  follows: 

"Accept.  Please  send  copy  of  agreement.  Waiting  further  in- 
structions before  departure." 

On  the  same  date  defendant  wrote  plaintiff  enclosing 
draft  of  agreement.  This  draft,  instead  of  providing  for  a 
straight  term  of  thi^ee  years,  stipulated  for  a  term  of  not 
less  than  one  year,  with  an  option  reserved  to  the  defendant 
company  to  renew  the  agreement  for  a  further  term  of 
two  years. 

On  May  28,  1910,  plaintiff,  at  Zurich,  acknowledged  re- 
ceipt of  draft  of  agreement  and  said : 

"I  must  ask  you  to  make  the  following  alterations  in  the  wording 
of  the  agreement. 

First — to  read:  'for  a  term  of  three  years  from  the  date  of  enter- 
ing the  office  of  the  said  Frazar  &  Co.' 

Scrnricl — to  read:  'but  the  said  Frazar  &  Co.  reserve  the  right  to 
cancel  this  agreement  at  any  time  without  notice,  should  the  said 
R.  W.  Steiner  give  just  cause  for  so  doing,  and  should  the  said  R. 
W.  Steiner  leave  the  employ  on  his  own  free  will,  he  agrees  not  to 
enter  any  other  firm  in  Shanghai  before  expiration  of  his  Agreement, 
without  first  having  the  written  consent  of  the  said  Frazar  &  Co.,  and 
in  no  case  to  open  up  correspondence  with  the  constituents  of  the  said 
Frazar  &  Co.  with  a  view  to  do  business  with  them." 


STEINER  V.  FRAZAR  &  CO.,  DEC.  19,  1911.       251 

Without  waiting  for  the  perfection  of  the  written  agree- 
ment as  per  his  conditions  and  without  further  correspond- 
ence in  reference  thereto  the  plaintiff  made  his  preparations, 
proceeded  to  Shanghai  and  enteied  upon  his  direct  em- 
ployment with  the  defendant  company  on  August  1,  1910. 

Within  a  day  or  two  thereafter  the  matter  of  the  formal 
agreement  was  the  subject  of  conversation  between  the 
plaintiff  and  Mr.  McMichael,  defendant's  senior  partner, 
who  insisted  upon  the  signing  of  the  agreement  as  drafted, 
which  the  plaintiff  refused.  It  appears  that  the  matter  was 
further  referred  to  several  times  between  the  parties  with 
the  same  result.  Meanwhile  the  plaintiff  continued  in  the 
employ  of  the  defendant  company  and  so  remained  for  the 
period  of  one  year  and  three  months,  receiving  a  salary  at 
the  rate  of  three  hundred  per  month.  After  the  expi- 
ration of  the  first  year's  service  the  defendant  company 
continued  to  pay  the  plaintiff  at  the  same  rate,  for  the 
period  of  three  months  thereafter,  refusing  to  pay  the  rate 
specified  in  the  original  offer  except  on  condition  that  plain- 
tiff sign  the  form  of  agreement  tendered.  At  the  end  of 
the  three  months  of  the  second  year  plaintiff"  consulted 
counsel,  who,  under  his  instructions,  made  demand  for 
payment  of  an  additional  sum  of  Taels  twenty-five  per 
month.  The  defendant  company  paid  the  additional  amount 
demanded  and  peremptorily  dismissed  the  plaintiff  from  its 
employment. 

Plaintiff's  contention  is  that  the  correspondence  between 
the  parties  resulted  in  a  complete  agreement  upon  which  he 
acted,  closing  up  his  business  at  Zurich,  following  de- 
fendant's instructions  respecting  certain  interests  the  com- 
pany had  then  pending  in  Europe  and  then  reporting  in 
Shanghai  and  entering  upon  his  actual  employment. 

Defendant  contends  that  the  negotiations  for  a  contract 
between  them  never  reached  a  finality  since  in  his  last 
communication  plaintiff  asked  for  a  written  agreement: 
that  a  draft  of  such  written  agreement  was  sent  to  him  at 
Zurich,  that  he  insisted  upon  a  modification  of  its  terms 
and,  without  completing  the  negotiations  and  reaching  a 
definite  agreement,  came  to  Shanghai  and  actually  entered 


252  I  EXTRATERRITORIAL  CASES. 

the  employ  of  the  company,  that  after  reaching  China  he 
refused  to  sign  the  agreement,  that  the  defendant  refused 
to  modify  its  terms  and  that  his  services  thereafter  rendered 
the  firm  could  not  be  related  to  any  definite  contract  since 
none  had  ever  been  made  between  the  parties. 

To  permit  a  clear  differentiation  of  these  two  contentions 
it  is  only  necessary  to  examine  the  negotiations  up  to  the 
claimant's  letter  dated  Zurich,  May  28,  1910,  at  which  time 
such  negotiations  as  were  had  between  the  parties  prior 
to  plaintiff's  arrival  in  Shanghai  were  concluded.  De- 
fendant's letter  of  April  15,  1910,  was  a  clear,  unambiguous 
offer  of  employment  on  clearly  stated  terms.  Obviously 
if  that  offer  had  been  unconditionally  accepted,  a  contract 
would  have  thus  been  effected. 

Was  plaintiff's  reply  an  unconditional  acceptance? 

1.  He  cabled  an  acceptance  subject  to  a  commission,  sug- 
gesting an  increase  of  salary  if  commission  could  not  be 
allowed. 

2.  Replying  to  defendant's  answer  that  a  commission 
would  be  allowed  on  Pongees,  he  further  cabled  defendant 
"Accept.  Please  send  copy  of  agreement;  waiting  further 
instructions  before  departure." 

Plaintiff  insists  in  argument  that  this  was  an  uncon- 
ditional acceptance  and  that,  on  his  demand,  he  was  entitled 
to  have  the  agreement  made  put  into  written  form.  There 
can  be  no  doubt  that  he  had  the  right  to  insist  that  any 
aigreement  should  not  be  binding  upon  him  unless  reduced 
to  writing  as  a  formal  agreement.  Could  his  acceptance  in 
the  terms  of  his  own  statement  be  reasonably  construed  as 
otherwise  than  conditional  upon  his  receiving  a  satisfactory 
form  of  written  agreement? 

It  must  be  borne  in  mind  that  fundamentally  no  contract 
can  be  made  without  a  meeting  of  the  minds  of  the  two 
parties.  Plaintiff  demanded  a  written  agreement  and  noti- 
fied defendant  that  he  would  wait  for  further  instructions 
before  departure.  Can  this  be  construed  as  anything  else 
than  a  statement  from  the  plaintiff,  in  effect, 

"I  am  satisfied  with  the  terms  as  stated  but  I  want  an  agreement 
in  writing  and  I  will  not  proceed  until  I  have  a  satisfactory  agree- 
ment in  writing"? 


STEINER  V.  FRAZAR  &  CO.,  DEC.  19,  1911.  2^3 

Obviously  it  was  the  right  of  either  party  to  demand  a 
written  agreement.  Up  to  that  time  the  parties  were 
negotiating.  There  had  been  no  final  agreement  between 
them.  Plaintiff  made  this  demand  and  defendant  complied 
therewith  and  drafted  an  agreement  and  forwarded  a  copy 
which  plaintiff  received,  apparently  before  leaving  Zurich. 
It  is  axiomatic  that  either  party  may  modify  terms  or 
withdraw  from  negotiations  while  pending. 

It  is  well  recognized  that  a  valid  and  binding  contract 
can  be  made  by  correspondence.  These  two  parties  were 
engaged  in  negotiations  at  a  very  long  range.  Both  the 
telegraph  lines  and  the  mails  were  the  medium  of  com- 
munication. The  offer  was  made  by  letter  in  which  answer 
was  invited  by  telegraph.  Telegrams  were  exchanged  and 
the  latest  communication  was  by  mail  from  the  plaintiff  to 
the  defendant.  Whether  or  not  during  this  period  of  cor- 
respondence any  point  was  reached  at  which  the  minds  of 
the  pa;rties  met  in  an  agreement,  must  be  determined  by 
reference  to  their  respective  communications.  The  familiar 
rule,  where  parties  are  engaged  in  negotiations  by  corres- 
pondence with  reference  to  a  possible  contract,  is  that: 

"In  order  to  convert  a  proposal  into  a  contract  the  acceptance  must 
be  absolute  and  unqualified."  ^ 

In  a  particular  case  the  question  is  wholly  one  of  con- 
struction of  the  proposals  and  counter-proposals  with  a  view 
to  determine  the  intention  of  the  parties  and  whether  a 
point  has  been  reached  where  they  have  met  in  the  same 
common  intention. 

The  same  authority  says  that  altho  parties  are  in 
fact  agreed  upon  terms  they  may  intend  that  the  agreement 
shall  not  be  binding  in  law  until  it  is  put  into  a  formal 
writing  and  signed  by  the  parties.  He  recites  a  rule  as 
follows : 

"If  to  a  proposal  or  offer  an  assent  be  given  subject  to  a  provision 
as  to  a  contract,  then  the  stipulation  as  to  the  contract  is  a  term  of 
the  assent,  and  there  is  no  agreement  independent  of  that  stipula- 
tion." ' 

^  Wald's   Pollock  on   Contracts    (3d  Am.  ed.)    43,  quoting  Indian 

Contract  Act,  sec.  7,  subsec.  1.     Ed. 

'  Id.  46,  quoting  Chinnock  v.  Marchioness  of  Ely,  4  D.  J.  S.  646. 


254  I   EXTRATERRITORIAL   CASES. 

Numerous  cases  are  cited  in  support  of  this  rule. 

It  must  be  noted  also  that  it  was  the  plaintiff  himself 
who  made  the  demand  for  a  formal  agreement.  He, 
himself  was  responsible  for  the  qualification  of  the  ac- 
ceptance. Obviously  he  put  himself  in  a  position  to  refuse 
to  sign  a  draft  of  contract  unless  satisfactory  to  him.  In 
fact  this  is  exactly  what  followed.  Such  position  is  ob- 
viously inconsistent  with  a  contention  that  a  binding 
agreement  had  already  been  reached.  Assume  on  the 
same  state  of  facts  that  plaintiff  specifically  refused  to 
come  out  unless  agreement  was  drawn  to  his  satisfaction, 
would  defendant  have  a  valid  right  of  action  against  him? 
We  think  the  question  must  be  answered  in  the  negative. 
If  one  of  the  parties  had  the  path  open  for  withdrawal, 
the  contract  could  not  be  regarded  as  completed.  The  mu- 
tuality necessary  to  give  validity  to  the  contract  would  be 
wanting. 

It  only  remains  to  consider  whether  upon  the  facts  es- 
tablished in  this  record  plaintiff  is  entitled  to  any  relief. 
He  was  admitted  to  the  employ  of  defendant  for  one  year 
and  three  months  and  has  rendered  service.  There  is  no 
evidence  in  the  record  that  the  service  was  not  satisfactory 
in  every  respect  and  such  as  contemplated  by  defendant 
when  employment  was  offered.  The  acceptance  of  such 
service  by  defendant  carries  with  it  an  obligation  for  fair 
treatment  and  adequate  compensation  on  quantum  meruit. 
Plaintiff  was  an  employee  of  the  company  without  any  de- 
finite understanding  between  them  respecting  compensation 
or  term  of  employment.  Pursuing  his  rights  as  he  saw 
them  plaintiff  initiated  legal  proceedings.  He  could  not  rea- 
sonably have  contemplated  that  he  could  remain  in  the 
employ  of  the  company  while  threatening  it  with  suit,  unless 
his  confidence  in  the  merits  of  his  position  was  such  as  to 
convince  him  that  the  company  would  immediately  yield  to 
his  full  demand.  It  must  be  presumed  that  the  plaintiff 
deliberately  assumed  whatever  risks  attended  such  action. 
He  can  rightfully  claim  nothing  by  reason  of  acts  of  the 
company  which  were  the  logical  and  necessary  results  of  his 
own  action.     In  the  opinion  of  the  Court  the  plaintiff  is 


STEINER  V.  FRAZAR  &  CO.,  DEC.   19,   1911.  255 

equally  responsible  with  this  defendant  for  the  development 
of  this  controversy. 

While  such  action  on  the  part  of  the  plaintiff  might 
afford  sufficient  ground  to  justify  the  defendant  in  ter- 
minating all  business  relations  with  him,  the  defendant 
company  cannot  escape  the  obligation  to  satisfy  all  just 
demands  reasonably  flowing  out  of  the  relation  to  which 
it  had  assented.  To  determine  what  that  obligation  is 
the  Court  can  find  no  better  measure  than  that  exhibited 
in  the  original  tender  of  service  and  in  the  draft  of  agree- 
ment proposed  by  the  defendant  company.  It  cannot  be  de- 
nied that  these  two  papers  disclose  the  conditions  upon 
which  the  company  desired  to  secure  the  services  of  the 
plaintiff  and  its  own  measurement,  perhaps  minimum,  of 
their  value.     The  material  conditions  are: 

1.  That  the  salary  for  the  second  year  was  to  be  at  the 
rate  of  Taels  325  per  month. 

2.  A  right  to  dismiss  the  plaintiff  without  notice  for 
just  cause. 

3.  Dismissal  without  cause  on  three  months'  notice. 

4.  A  commission  of  25  per  cent  on  the  net  liquidated  pro- 
fits of  all  business  inaugurated  by  plaintiff  in  pongee  and 
silk  woven  goods. 

5.  Passage  to  Shanghai  and  back  from  thence  on  ter- 
mination of  employment  to  be  paid  by  the  defendant  com- 
pany. 

It  is  reasonable  to  exclude  the  second  provision,  since  the 
cause  of  dismissal  in  the  present  case  does  not  relate  in 
any  way  to  the  quality  or  character  of  service  rendered  and 
the  fourth  provision  since  no  evidence  was  submitted  tend- 
ing to  show  that  any  commission  was  earned. 

Regarding  the  other  provisions  as  constituting  a  proper 
measure  of  defendant's  obligations  to  plaintiff,  the  Court 
finds  that  plaintiff  was  justly  entitled: 

1.  To  three  months'  notice  of  the  termination  of  his  em- 
ployment. 

2.  To  cost  of  second-class  passage  from  Shanghai  to  Zu- 
rich, Switzerland. 

Judgment  will  be  entered  for  the  plaintiff  for  salary  of 


256  I  EXTRATERRITORIAL  CASES. 

three  months  at  the  rate  of  Taels  three  hundred  and  twenty- 
five  per  month,  a  total  of  Taels  nine  hundred  and  seventy- 
five  and  further  for  the  cost  of  second-class  passage  from 
Shanghai  to  Zurich,  Switzerland,  which  may  be  ascertained 
and  reported  to  the  Court  and  will  then  be  entered  and 
form  an  integral  part  of  this  judgment.  Costs  will  be 
equally  divided  between  the  parties. 


IN  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS. 
Cathay  Trust,  Ltd.,  Appellant,  v.  F.  M.  Brooks,  Appellee. 

[No.  1971;  filed  February  5,  1912.] 

SYLLABUS. 
(By  the  Editor.) 

1.  JUDGMENTS:    Set   OFF:    Intervention.     The   assignee   of   moneys 

due  under  contracts  upon  which  judgment  is  afterward  recov- 
ered by  the  assignor,  against  whom  another  judgment  is  mean- 
while rendered  by  the  same  court  in  favor  of  the  first  judgment 
debtor,  is  entitled  to  intervene  in  a  proceeding  to  set  off  the 
two  judgments. 

2.  Id.:   Id.:  Id.:  Review:  Final  Order.     An  order  denjdng  such  in- 

tervention is  a  final  one  and  is  properly  reviewed  on  appeal. 

Jernigan  &  Fessenden,  Chickering  &   Gregory,   W.  H. 
Chickering,  Geo.  H.  Whipple,  and  W.  Dorn,  for  appellant. 
Bert  Schlesinger,  for  appellee. 

Before  Gilbert,  Ross,  and  Morrow,  Circuit  Judges. 

Ross,  C.  J.: 

This  is  an  appeal  from  an  order  ^  of  the  United  States 
Court  for  China  denying  the  petition  of  the  appellant  to 
intervene  in  a  proceeding  relating  to  the  set-off  of  judg- 
ments, which  proceeding  was  initiated  by  motion  made  in 
an  action  at  law  in  the  same  court  in  which  both  judgments 
were  entered.  Objection  is  made  to  the  entertaining  of  the 
appeal  by  this  court  on  the  ground  that  the  order  complained 
of  should  have  been  brought  up  by  writ  of  error. 

See  ante,  p.  221. 


CATHAY  TRUST  V.  BROOKS,  FEB.  5,  1912.       257 

1.  The  objection  is  not  well  taken,  for  it  is  well  settled 
that  the  proceeding  in  question  is  of  ah  equitable  nature. 

"The  satisfaction  of  a  judginent,"  says  Freeman,"  "may  be  wholly 
or  partly  pi'oduced  by  compelling  the  judgment  creditor  to  accept 
in  payment  a  judgment  against  him  in  favor  of  the  judgment  debtor, 
or,  in  other  words,  by  setting  off  one  judgment  against  another. 
This  is  usually  brought  about  by  a  motion  in  behalf  of  the  party  who 
desires  to  have  his  judgment  credited  upon  or  set  off  against  a  judg- 
ment against  him.  The  court  in  a  proper  case  will  grant  the  motion. 
Its  power  to  do  this  cannot  be  traced  to  any  particular  statute  and 
exists  only  in  virtue  of  its  general  equitable  authority  over  its  officers 
and  suitors.  This  authority  was  formerly  restricted  to  courts  of 
equity  but  is  now  very  generally  exercised  by  courts  of  law.  The 
judgments  sought  to  be  set  off  against  each  other  may  have  been 
rendered  in  the  same  or  in  different  courts.  In  the  first  case  there 
can  be  no  difficulty;  but  in  the  latter  it  has  sometimes  been  held 
that  a  court  of  law  was  inadequate  to  afford  I'elief  and  that  resort 
to  chancery  was  therefore  unavoidable.  This  position  is  believed 
to  be  untenable.  The  court  of  law  in  which  the  judgment  is  entered 
can  give  relief  by  virtue  of  its  equitable  power  and  may  direct  that 
the  judgment  of  another  court  be  credited  upon  or  set  off  against 
its  judgment,  except  when  the  rights  of  the  parties  are  too  intricate 
and  complicated  to  be  adjusted   elsewhere  than   in  equity." 

2.  The  order  appealed  from  is  a  final  order,  for,  if  correct, 
it  finally  and  absolutely  disposes  of  the  appellant's  alleged 
rights  in  the  premises.     The  facts  briefly  stated  are  these : 

The  appellant  is  a  British  corporation  carrying  on 
business  at  Shanghai,  China.  On  the  29th  of  June,  1910, 
one  C.  R.  Bennett  made  an  assignment  in  writing  to  the 
appellant  of  all  his  right,  title,  and  interest  in  and  to  all 
sums  of  money  due  and  payable  to  him  by  one  F.  M.  Brooks 
in  respect  of  all  contracts  for  the  June  settlement  on  the 
Shanghai  Stock  Exchange.  Without  any  notice  to  Brooks 
of  such  assignment,  so  far  as  appears,  an  action  was  there- 
after brought  in  the  court  below  in  the  name  of  Bennett 
against  Brooks  upon  those  contracts,  in  which  action  the 
defendant  Brooks  filed,  on  the  8th  day  of  November,  1910, 
a  confession  of  judgment  "pursuant  to  an  agreement  be- 
tween the  said  Bennett  and  Brooks  whereby  certain  scrip 
or  shares  were  deposited  in  court  by  said  Bennett  to  be 


^  Judgments,    II,    sec.    467&      See    also    Black    on    Judgments,    vol. 
2,   sec.   1000. 

14008  O.  W. 17 


258  I  EXTRATERRITORIAL  CASES. 

delivered  to  the  said  Brooks  upon  full  satisfaction  of  the 
aforesaid  judgment  which  said  scrip  or  shares  now  con- 
stitute a  fund  in  court."  A  judgment  by  default  having 
been  recovered  against  Bennett  in  the  same  court  on  the 
3rd  day  of  November,  1910,  for  Tls.  8,993.38  by  Lao  Lai 
Ting  and  Chung  Ting  Yee,  with  costs  of  suit,  this  purported 
assignment  of  that  judgment  appears  in  the  record: 

"Know  all  men  by  these  presents :  That  whereas,  the  said  Lao  Lai 
Ting  and  Chun  Ting  Yee  did  this  third  day  of  November,  1910,  re- 
cover judgment  in  the  above-entitled  court  against  C.  R.  Bennett  for 
the  sum  of  Tls.  8,993.38  and  cost  of  suit  as  by  the  record  thereof 
will  more  fully  appear:  Now  we,  the  said  Lao  Lai  Ting  and  Chuii 
Ting  Yee,  in  consideration  of  the  sum  of  $1.00  and  other  valuable 
considerations  to  us  paid,  hereby  sell,  assign,  and  transfer  to  F.  M. 
Brooks  the  judgment  above  mentioned  for  his  use  and  benefit,  hereby 
authorizing  him  to  collect  and  enforce  payment  thereof  in  our  name 
or  otherwise,  but  at  his  own  costs  and  charges,  and  we  hereby  cov- 
enant that  the  sum  of  Tls.  8,993.38  is  due  thereon. 

Lao  Lai  Ting, 
"By  His  Representative,  Chen  Tsung  Tung. 

Chung  Ting  Yee, 
"By  His  Representative,  S.  C.  LiU. 
"Witness  to  the  signature  of  Chen  Tsung  Tung: 

"K.  T.  Chang. 
"Witness  to  the  signature  of  S.  C.  Liu: 

"M.  S.  Chen. 
"Shanghai,  November  4th,  1910." 

Based  upon  the  above  purported  assignment,  Brooks, 
on  the  9th  day  of  November,  1910,  made  a  motion  in  the 
court  below  to  set  off  the  judgment  so  recovered  against 
Bennett  against  the  judgment  recovered  by  Bennett  against 
him ;  and  it  was  for  the  purpose  of  contesting  that  motion 
that  the  appellant  by  petition  sought  to  intervene  and  be 
heard,  basing  its  petition  upon  its  alleged  ownership  of  all 
sums  due  and  owing  by  Brooks  to  Bennett  growing  out  of 
the  contracts  referred  to,  by  virtue  of  the  assignment  made 
to  it  by  Bennett  on  the  29th  of  June,  1910. 

3.  Upon  the  showing  made  the  appellant  appeared  to  be 
the  equitable  owner  of  the  judgment  recovered  in  Bennett's 
name  against  Brooks;  for  if  the  allegation  made  in  the 
petition  for  intervention  be  true,  to  the  effect  that  Bennett 


UNITED  STATES  V.  JORDAN,  MAR.  2  6,  1912.  259 

had  on  the  29th  of  June,  1910,  transferred  to  the  appellant 
all  of  his  title  and  interest  in  the  choses  in  action  out  of 
which  that  judgment  arose,  and  that  the  appellant  continued 
to  be  the  absolute  owner  thereof,  then  manifestly  the  latter 
was  vitally  interested  in  the  question  as  to  whether  the  judg- 
ment recovered  against  Bennett  and  subsequently  purport- 
ing to  have  been  assigned  to  Brooks  should  be  set  off  against 
it.  Such  a  course  would  obviously  be  in  the  interest  of 
Bennett,  but  altogether  against  that  of  the  appellant,  if 
all  of  the  interest  of  Bennett  in  the  choses  in  action  upon 
which  the  judgment  in  his  favor  was  based  had  in  fact  been 
previously  assigned  to  the  appellant. 

The  appellant,  having  thus  a  vital  interest  in  the  subject- 
matter  affected  by  the  motion  to  set  off  one  of  the  judgments 
against  the  other,  was  clearly  entitled  to  be  heard  in  respect 
to  the  question  involved  in  it. 

The  judgment  ^  is  reversed,  and  the  cause  remanded  to 
the  court  below,  with  directions  to  allow  the  intervention 
petitioned  for. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  J.  F.  Jordan. 

[Criminal  Cause  No.  58;  filed  March  26,  1912.] 

SYLLABUS. 

(By  the  Editor.) 

TREATIES:      Legal  efficiency  of,  is  not  affected  by  internal  changes 
in   governments. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
J.  W.  Rice,  Esq.,  for  defendant. 

Thayer,  J.: 

At  the  last  session  of  the  Court  a  motion  to  quash  was 
submitted  by  the  defendant  and  briefs  thereon  have  been 
filed  by  counsel.     It  now  appears  that  defendant  has  fled 

*  For  the  judgment  below,  see  ante,  p.  225. 


260  I  EXTRATERRITORIAL  CASES. 

the  jurisdiction.  He  had  given  cash  bail  and  an  order  of 
forfeiture  of  bail  will  be  entered.  As  further  proceedings 
cannot  be  had  in  his  absence  the  Court  is  relieved  of  the 
duty  of  disposing  of  the  motion  to  quash. 

However,  there  is  one  question  which  was  raised  by 
counsel  in  support  of  said  motion  to  which  it  is  deemed 
proper  briefly  to  allude.  Counsel  in  argument  raised  the 
question  as  to  the  present  legal  efficiency  of  the  treaties 
between  the  United  States  and  China.  He  suggested  that 
said  treaties  were  made  with  His  Majesty  the  Emperor 
of  China,  that  the  Emperor  of  China  had  abdicated,  that 
the  United  States  had  not  recognized  any  government  in 
succession  nor  entered  into  relations  therewith  and  argued 
therefrom  that  the  treaty  had  no  present  binding  force. 

In  answer  to  this  contention  it  would  be  quite  sufficient 
to  say  that  it  raises  questions  of  fact  of  which  this  Court 
can  take  no  judicial  notice.  The  making  and  termination 
of  treaties  and  the  recognition  of  new  governments  belong 
to  the  political  department  of  the  government. ^ 

It  is  a  well  established  doctrine  that  until  the  recognition 
of  a  new  government  by  the  political  department,  courts 
of  justice  are  bound  to  consider  the  former  state  of  things 
as  remaining  unaltered. - 

The  question  of  what  effect  is  produced  on  existing 
treaties  by  internal  changes  in  form  of  government  is  given 
full  consideration  in  the  various  text  books  on  international 
law.  Sir  Sherston  Baker  -  states  the  governing  principle 
very  clearly: 

"Questions  of  great  importance  sometimes  arise  with  respect  to 
the  international  effects  produced  by  internal  changes  in  the  form 
of  government  and  by  a  change  in  the  sovereignty  of  a  State  with 
respect  to  its  duties  and  obligations  toward  others.  These  questions 
relate  to  treaties,  public  debts,  the  public  domain,  private  rights  of 

'The  Nueva  Anna,  6  Wheat.  193,  5  L.  ed.  239;  U.  S.  v.  Palmer, 

3  Wheat.  610,  4  L.  ed.  471;  Kennett  v.  Chambers,  14  Howard  38,  14 
L.  ed.  316;  Prize  Cases,  2  Black  G96,  17  L.  ed.  459,  and  numerous 
other  cases  cited  therein. 

-Gelston  v.  Hoyt,  3  Wheaton  24G,  4  L.  ed.   381;   Rose  v.  Mimely, 

4  Cranch  241,  2  L.  ed.  241. 

^  First   Steps   in   International   Law,   sec.   25. 


UNITED  STATES  V.  THOMPSON,  MAR.  28,     1912.  261 

property,  and  to  responsibility  for  wrongs  done  to  the  governments  or 
subjects  of  other  States.  As  a  general  rule,  a  mere  change  in  the 
form  of  government,  or  in  the  person  of  the  ruler,  does  not  affect 
the  duties  and  obligations  of  a  State  towards  foreign  nations.  All 
treaties  of  amity,  commerce,  and  real  alliance  remain  in  force  pre- 
cisely as  if  no  intervening  change  had  taken  place,  except  in  cases 
where  the  compact  relates  to  the  form  of  government  itself,  or  to 
the  person  of  the  ruler  in  the  nature  of  a  guaranty.  Public  debts, 
whether  due  to  or  from  the  revolutionized  State,  are  neither  cancelled 
nor  affected  by  any  change  in  the  constitution  or  internal  government 
of  a  State.  So,  also,  of  its  public  domain  and  right  of  property.  If 
a  revolution  be  successful,  and  a  new  constitution  be  established,  the 
public  domain  and  public  property  passed  to  the  new  government. 
The  State,  on  the  other  hand,  remains  responsible  for  the  wrongs 
done  to  the  government  or  subjects  of  another  State,  notwithstanding 
any  intermediate  change  in  the  form  of  its  government  or  in  the 
persons  of  its  rulers.  These  results  flow  necessarily  from  the  prin- 
ciple that  the  identity  of  a  State  is  preserved,  notwithstanding  the 
accidental  changes  in  its  internal  constitution." 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  W.  H.  Thompson. 

[Criminal  cause  No.  62;  filed  March  28,  1912.] 

SYLLABUS. 
(By  the  Editor.) 

1.  EXTRATERRITORIALITY.     The    White    Slave    Traffic    Act    is    oper- 

ative in  this  jurisdiction. 

2.  Id. :    Id.:    Venue.     An    offense    under   said   act   is   triable   here  tho 

initiated  in  another  jurisdiction. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.   for  prosecution. 
J.  W.  Rice,  Esq.,  for  detendant. 

Thayer,  J.: 

The  first  ground  upon  which  the  motion  to  quash  the 
information  is  based  is 

"because  no  venue  is  in  said  information  alleged  sufficient  to  give 
this  Court  jurisdiction  and  because  it  affirmatively  appears  therein 
that  the  crime  charged,  if  any  be  charged,  was  committed  in  the 
State  of  California  and  not  in  the  Consular  District  of  Shanghai,  and 
this  Court  has  consequently  no  jurisdiction  thereof." 


262  I  EXTRATERRITORIAL  CASES. 

Respecting  the  matter  of  venue,  an  examination  of  this 
information  discloses  that  there  is  the  usual  recital  that 
this  information  is  brought  in  the  United  States  Court  for 
China  in  session  at  Shanghai  which  appea  s  to  be  a  suf- 
ficient compliance  with  the  general  rule  relating  to  pleading 
venue. 

Respecting  the  second  objection,  the  crime  charged  is 
that  of  being  engaged  in  the  white  slave  traffic.  The  al- 
legation is  that  the  defendant  aided  and  assisted  in  obtain- 
ing transportation  from  San  Francisco,  California,  to 
Shanghai,  China,  of  a  person  named,  in  violation  of  what 
is  known  as  the  White  Slave  Traffic  Act.  Altho  not  affirm- 
atively pleaded  the  evidence  may  disclose  that  the  crime 
alleged  was  initiated  in  some  locality  outside  the  jurisdic- 
tion of  this  Court;  but  if  consummated  here  a  defendant 
M^ould  be  subject  to  trial  within  this  jurisdiction.^ 

The  Court  is,  of  course,  unable  to  anticipate  the  character 
of  evidence  but  is  of  the  opinion  that  the  crime  is  suf- 
ficiently charged  in  the  information  and  that  it  is  not  open 
to  said  objection. 

The  second  ground  stated  is 

"because    the    facts    alleged    do    not    constitute    in    China    an    offence 
against  the  laws  of  United  States." 

The  contention  of  counsel  appears  to  be  that  the  statute 
known  as  the  White  Slave  Traffic  Act  ^  is  not  operative  in 
this  extraterritorial  jurisdiction.  But,  "the  laws  of  the 
United  States  a.e  extended  over  all  citizens  of  the  United 
States"  in  China,'  and  the  statute  known  as  the  White 
Slave  Traffic  Act  is  such  a  law.  It  is  clear  and  definite 
in  its  terms  and  was  enacted  by  Congress  for  the  purpose 
of  regulating  inter-state  and  foreign  commerce  by  prohib- 
iting the  transportation  for  immoral  purposes  of  women 
and  girls  and  for  other  purposes.  In  the  first  section  a 
definition  is  given  to  the  term  "foreign  commerce"  so  that 

'  Act  of  Congress  of  March  3,  1899,  Sess.  Ill,  30  U.  S.  Stats,  at 
Large,  Ch.  429,  tit.  II,  sec.  7,  p.  1285. 

'Act  of  Congress  of  June  25,  1910,  Sess.  II,  36  U.  S.  Stats,  at 
Large,  Ch.  395,  p.  825. 

"U.  S.  Rev.  Stats.,  sec.  4086. 


SUN  MING-SHAN  V.  VILOUDAKI,  APRIL  29,  1912.         263 

it  includes  transportation  from  any  state  or  territory  or  the 
district  of  Columbia  to  any  foreign  country. 

It  is  obvious  that  transportation  between  San  Francisco, 
California,  and  Shanghai,  China,  would  be  included  within 
the  term  "foreign  commerce"  and  the  Court  is  satisfied  that 
any  violation  of  this  statute,  consummated  in  China  by  an 
American  citizen,  would  be  within  this  extraterritorial  jur- 
isdiction. There  can  be  no  doubt  as  to  the  intent  of 
Congress  respecting  the  complete  prohibition  of  the  several 
acts  recited  as  between  the  United  States  and  foreign 
countries. 

The  Court  sees  no  merit  in  the  objections  and  the  motion 
to  quash  is  therefore 

DENIED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Sun  Ming-shan  v.  N.  A.  Viloudaki. 

[Civil  action  No.   103;   filed  April  29,   1912.] 

SYLLABUS. 
(By  the  Editor.) 

1.  GUARAKTY:    NOTICE   OF   ACCEPTANCE   is    not   necessary   where    the 

guarantor   is  personally  interested   in   the   subject  matter. 

2.  Id.  :    Notice  of   Default  is  necessary  unless  expressly  waived  or 

the  guaranty  covers  a  debt  already  due. 

3.  Id.  :    Id.  :    Time.     Such    notice    must    be    within    a    reasonable    time 

which,  however,  varies  with  the  circumstances  of  each  case. 

4.  Id.  :    Id.  :    But   lack   of   notice   will   release  the   guarantor   only    so 

far  as  he  has  been  prejudiced. 

5.  EVIDENCE:   WEIGHT.     Rules  for  weighing  testimony  stated. 

6.  Id. :  Id.:  Affirmative  testimony  prevails  over  negative. 

Messrs.  Fleming  &  Rice,  for  plaintiff. 
Messrs.  Jetnigan  &  Fessenden,  for  defendant. 

Thayer,  J.: 

This  is  an  action  on  the  following  guaranty: 

"Shanghai,  12th  February,  1909. 
"In  consequence  of  Mr.  Sun  Ming-shan  shall  advance  to  Mr.  T.  J. 
F.   Moran,  as  promoter  of  the  proposed   China   Mercantile   Life   As- 


264  I  EXTRATERRITORIAL  CASES. 

surance  Society,  Limited,  the  sum  of  Tls.  2,000  (Taels  two  thousand) 
for  the  office  expenses  of  the  said  proposed  company,  I,  the  under- 
signed, hereby  guarantee  to  refund  to  the  said  Mr.  Sun  Ming-shan 
all  money  thus  advanced  by  him  to  the  said  Mr.  T.  J.  F.  Moran 
within  six  months  from  the  date  of  signing  of  this  bond  not  exceeding 
Tls.  2,000  (Taels  two  thousand).  No  matter  whether  the  said  pro- 
posed company  shall  be  wound  up,  in  insolvency,  in  bankruptcy  or 
shall  not  be  incorporated  or  exceeding  the  period  above  mentioned,  I 
shall  make  good  and  refund  the  said  sum  of  Taels  two  thousand  ad- 
vanced by  the  said  Mr.  Sun  Ming-shan. 

"N.    A,   ViLOUDAKI. 

"Witness  to  the  signature  of  T.  J.  F.  Moran: 
"Zi  Liang." 

It  appears  from  the  evidence  that  the  defendant  was 
interested  in  the  promotion  of  said  company;  that  he  was 
a  subscriber  for  its  stock  and  was  advertised  as  a  member 
of  its  board  of  directors.  The  company  was  in  its  pro- 
moting stage  and  funds  were  needed  to  meet  promotion 
expenses.  Instead  of  such  funds  being  supplied  by  the 
parties  immediately  interested  in  establishing  the  company 
the  expedient  was  adopted  of  securing  a  Chinese  compradore 
who  could  be  induced  to  advance  such  funds.  Mr.  Moran 
sought  out  the  plaintiff  and  tendered  him  employment  im- 
posing as  a  condition  that  he  should  advance  the  sum  of  five 
thousand  taels.  The  prospects  of  the  company  were  painted 
in  glowing  colors  but  plaintiff  declined  to  advance  more 
than  Taels  two  thousand  and  insisted  that  he  should  have 
a  satisfactory  guarantor  for  that  amount.  Defendant  was 
offered  as  such  guarantor  and  accepted  and  the  instrument 
was  signed  by  him  and  delivered  to  plaintiff  who  entered 
upon  his  employment.  He  made  from  time  to  time  con- 
siderable advances  to  cover  office  expenses  of  said  company, 
aggregating  in  amount  a  sum  largely  in  excess  of  Taels 
two  thousand,  all  within  the  period  of  six  months  as  fixed 
in  said  guaranty. 

Some  time  in  the  month  of  August,  1909,  the  said  com- 
pany discontinued  and  ceased  to  attempt  to  do  business  and 
the  said  Moran  failed  and  refused  to  repay  the  plaintiff  the 
amounts  advanced  to  him  by  the  plaintiff.  Moran  having 
removed  to  Hongkong  the  plaintiff  sued  him  on  this  ac- 
count in  Hongkong  and  on  October  8,   1910,  recovered  a 


SUN  MING-SHAN  V.  VILOUDAKI,  APRIL  29,  1912.        265 

judgment  against  him  for  Five  thousand  one  hundred  and 
seventy-four  and  '^S/j,,,.  dollars  less  Taels  1,200,  plus  seven 
hundred  and  seventy-six  and  ^%(H)  dollars  costs.  On  this 
judgment  plaintiff  has  realized  only  fifteen  hundred  dollars. 

Plaintiff  testifies  that  shortly  after  the  failure  of  Moran 
to  repay  him  he  notified  the  defendant  of  such  failure  and 
was  told  by  the  defendant  that  he  must  first  exhaust  all 
legal  remedies  against  Moran.  The  defendant  denies  this 
statement  explicitly  and  testifies  that  the  first  and  only 
notice  received  by  him  from  the  plaintiff  was  by  letter 
of  plaintiff's  counsel  dated  September  19,  1911.  This  suit 
was  filed  March  14,  1912. 

All  of  the  facts  above  stated,  excepting  only  the  matter 
of  notice  of  acceptance  of  guaranty  and  of  Moran's  failure 
to  pay  to  plaintiff  the  sums  advanced,  are  undisputed.  It 
is  clearly  shown  in  the  evidence  that  defendant  was  fre- 
quently in  the  office  of  the  company  and  saw  the  plaintiff 
there  acting  as  compradore.  He  must  have  known  that 
the  plaintiff  had  entered  upon  his  employment  relying  on 
the  guaranty.  Defendant  cannot  be  regarded  as  a  party 
without  interest.  His  interest  in  the  company  as  a  share- 
holder and  as  a  proposed  director  is  the  only  consideration 
disclosed  for  assuming  the  obligations  of  a  guarantor.  He 
has  been  in  Shanghai  many  years  and  cannot  be  assumed 
to  be  unfamiliar  with  the  functions  performed  by  a  com- 
pradore in  such  cases. 

Having  signed  and  delivered  the  guaranty  and  having 
seen  plaintiff  actually  engaged  in  such  employment,  it 
would  be  unreasonable  to  assume  ignorance  on  his  part 
that  the  guaranty  had  been  accepted  by  plaintiff.  The 
circumstances  of  this  case  are  such  that  he  is  charged  with 
full  notice  of  such  acceptance.  There  is  also  abundant  au- 
thority that  where  a  guaranty  is  given  by  one  who  has  a 
personal  interest  in  the  subject  matter,  liability  attaches 
altho  no  specific  notice  of  acceptance  was  given. ^ 

Counsel  for  plaintiff  contends  that  the  phrasing  of  the 
present  guaranty  is  such  as  to  make  it  absolute  and  as 

^Brandt,  Suretyship  &  Guaranty  (2nd  ed.),  sec.  193  et  seq.;  Doud 
V.  National  Park  Bank,  54  Fed.  846. 


266  I   EXTRATERRITORIAL   CASES. 

such  no  notice  to  guarantor  of  advances  and  of  default  was 
necessary.  The  instrument  is  very  broad  in  terms.  While 
it  is  a  guaranty  for  future  advances  it  states  the  obligation 
of  the  guarantor  very  explicitly  especially  in  its  concluding 
clause. 

It  is  difficult  to  see  how  this  guaranty  could  have  been 
made  more  absolute  and  unconditional  unless  there  had 
been  included  a  provision  expressly  waiving  all  notice. 
The  best  authorities  hold  that  notice  is  necessary  in  all  cases 
of  commercial  guaranty  unless  expressly  waived  or  unless 
it  covers  a  debt  already  due.  Plaintiff's  citations  are  over- 
whelmingly met  by  contrary  authorities. - 

Was  notice  of  default  given  to  the  defendant  by  the  plain- 
tiff at  or  near  the  time  of  default? 

It  has  already  been  recited  that  the  plaintiff  testified 
that  he  did  give  such  notice  to  the  defendant  and  was  told 
by  him  in  effect  that  he  must  first  exhaust  all  remedies 
against  Moran.  This  the  defendant  denies.  With  such 
conflict  of  testimony  the  fact  of  actual  notice  to  the  de- 
fendant could  not  be  regarded  as  established  unless  reasons 
should  appear  to  the  court  for  giving  greater  credence  to 
the  testimony  of  the  plaintiff.  In  weighing  the  conflicting 
testimony  of  witnesses  it  is  a  familiar  rule  of  evidence  that 
the  jury  may  take  into  consideration 

"the  memory,  the  motives,  the  intelligence  and  appearance  of  the 
witness  on  the  stand,  his  means  of  information,  his  evident  bias  or 
his  candor  and  fairness  as  well  as  the  consistency  of  his  testimony 
and  his  interest  or  want  of  interest  in  the  result."'' 

It  satisfactorily  appears  that  the  plaintiff  was  active  and 
persistent  in  his  efforts  to  collect  the  advances  made  to 
Moran  and  that  he  pursued  Moran  even  into  another  juris- 
diction and  secured  judgment  against  him.  This  is  con- 
sistent with  his  testimony  that  the  defendant  insisted  upon 
his  first  pursuing  Moran,  at  the  time  when  he  notified  de- 

"  Cremer  v.  Higginson,  6  Fed.  Cas.  797;  Russell  v.  Clark,  7 
Cranch  (U.  S.)  69,  3  L.  ed.  271;  Douglass  v.  Reynolds,  7  Pet.  (U.  S.) 
113,  8  L.  ed.  626;  Louisville  Mfg.  Co.  v.  Welch,  10  How.  (U.  S.) 
461,  13  L    ed.  497. 

^  Jones,  Evidence   (Horwitz  ed.),  V,  sec.  902. 


SUN  MING-SHAN  V.  VILOUDAKI,  APRIL  29,  1912.        267 

fendant  of  Moran's  default.  It  should  be  observed  that  the 
plaintiff  testified  to  an  affirmative,  viz.,  that  he  gave,  the 
notice  of  default  to  the  defendant,  while  the  defendant 
testifies  to  a  negative.  It  is  a  general  rule  of  evidence 
that  affirmative  testimony  is  stronger  than  negative. 

This  is  not  a  rule  of  slight  importance  nor  infrequently 
.invoked.  It  is  applied  where  there  are  two  witnesses  of 
apparently  equal  credibility  and  has  been  frequently  ap- 
proved by  the  Supreme  Court.* 

A  witness  who  testifies  to  an  affirmative  is  preferred 
because  he  who  testifies  to  a  negative  may  have  forgotten. 
It  is  possible  to  forget  a  thing  that  did  happen.  It  is  not 
possible  to  remember  a  thing  that  never  existed.  In  the 
case  cited  Justice  Miller  declares  it  "a  recognized  rule  of 
evidence  of  frequent  application"  and  approves  of  the  rea- 
sons stated  in  its  support.  It  is  cited  in  numerous  other 
later  Supreme  Court  cases.  On  all  the  evidence  illuminated 
by  the  rules  cited,  the  court  believes  that  on  this  point  the 
testimony  of  the  plaintiff  is  entitled  to  be  given  greater 
weight  than  that  of  the  defendant. 

But  if  we  assume  that  no  actual  notice  of  default  was 
served  on  the  defendant  until  after  the  expiration  of  two 
years,  does  this  fact  under  the  circumstances  of  this  case 
release  the  defendant  from  the  obligation  of  this  guaranty  ? 

A  case  ''  is  cited  in  which  Justice  Story  applied  the  rule 
to  the  facts  there  that  notice  within  a  reasonable  time  of 
advances  made  under  a  guaranty  is  necessary  to  fix  liability 
of  a  guarantor.  There,  however,  the  evidence  of  plaintiff's 
laches  was  conclusive.  The  court  recited  that  the  first 
notice  was  not  given  until  more  than  three  years  after  the 
last  advances  were  made  nor  until  after  both  of  the  debtors 
had  become  insolvent;  that  during  this  period  there  was 
active  correspondence  between  plaintiff  and  defendant  in 
which  there  was  no  reference  to  any  advances  having  been 
made ;  that  it  is  apparent  that  the  silence  was  not  imputable 
to  any  accident ;  on  the  contrary  that  it  appears  from  one 
of  the  letters  of  the  plaintiff  to  have  been  studied  and 


Stitt  V.  Huidekopers,  17  Wall.  385,  21  L.  ed.  644. 
Cremer  v.  Hig^nson,  6  Fed.  Cas.  797. 


268  I  EXTRATERRITORIAL  CASES. 

intentional.  The  care  exercised  by  the  learned  judge  in 
reciting  these  facts  is  significant.  Before  releasing  the 
obligor  on  the  guaranty  by  reason  of  laches,  the  clearest 
proofs  thereof  were  required.  In  other  words  when  a 
guaranty  is  given  the  obligor  is  presumed  to  have  assumed 
the  obligation  deliberately  and  in  good  faith  and  is  not 
to  be  released  therefrom  for  any  light  reason. 

"It  has  always  been  held  in  this  court  that,  notwithstanding  the 
contract  of  guaranty  is  the  obligation  of  a  surety,  it  is  to  be  con- 
strued as  a  mercantile  instrument  in  furtherance  of  its  spirit  and 
liberally,  to  promote  the  use  and  convenience  of  commercial  inter- 
course." " 

The  principles  upon  which  this  holding  rests  have  been 
declared  and  clearly  differentiated  in  several  successive 
Supreme  Court  decisions,  reference  to  which  has  already 
been  made.  The  rules  thus  enunciated  have  been  made  so 
clear  that  it  is  needless  to  analyze  the  case.     These  rules  are : 

First. — Notice  of  default  must  be  communicated  to  the 
guarantor  within  a  reasonable  time. 

Second. — What  is  a  reasonable  time  must  depend  upon 
the  circumstances  of  the  particular  case  and  is  generally  a 
question  of  fact  for  the  jury  to  determine. 

Third. — A  guarantor  is  not  released  unless  lack  of  notice 
inflicts  loss  upon  him  and  only  so  far  as  he  has  been  pre- 
judiced." 

If  we  accept  the  testimony  of  the  defendant,  notice  of 
default  was  not  actually  served  on  him  until  a  little  more 
than  two  years  after  the  default  occurred.  Under  the  cir- 
cumstances of  this  case  was  this  a  reasonable  time?  In 
answering  this  question  all  the  circumstances  of  the  case 
as  disclosed  by  the  evidence  in  the  record  must  be  con- 
sidered. The  defendant  cannot  plead  ignorance  of  his 
obligation,  of  his  active  interest  in  the  promotion  of  the 
company  and  of  its  failure.  He  admits  knowledge  that 
plaintiff  had  obtained  judgment  against  Moran  in  Hongkong. 
While  he  testifies  that  he  received  no  formal  notice  of  the 


'  Davis  V.  Wells,  104  U.  S.  159,  26  L.  ed.  686. 
'  Lawrence  v.  McAlmont,  2  How.    (U.  S.)   426,  13  L.  ed.  497,  and 
see  cases  cited  in  preceding  notes. 


SUN  MING-SHAN  V.  VILOUDAKI,  APRIL  29,  1912.        269 

acceptance  of  the  guaranty  and  only  a  delayed  notice  of  the 
default  of  Moran,  he  does  not  testify  that  he  believed  no 
advances  had  been  made  in  reliance  on  his  guaranty.  The 
couit  is  convinced  that  he  must  have  known  not  only  that 
the  plaintiff  had  accepted  his  guaranty  but  had  also  made 
large  advances  to  Moran  for  the  office  expenses  of  the  com- 
pany. In  view  of  his  active  interest  in  the  exploitation 
of  the  company,  and  of  his  investment  in  its  shares  it  is 
no  violent  presumption  that  he  kept  himself  well  acquainted 
with  its  development. 

It  would  be  unreasonable  also  to  assume  that  under  these 
circumstances  he  would  be  indifferent  respecting  his  obli- 
gations on  the  guaranty  for  Taels  two  thousand.  He  was 
active  in  obtaining  a  refund  of  the  amount  paid  by  him 
for  shares  in  the  company.  For  obvious  reasons  he  was 
not  so  keen  to  meet  the  obligations  he  had  assumed  in  con- 
nection with  the  promotion  of  the  company.  During  this 
period  plaintiff  was  urgently  and  persistently  pursuing  Mo- 
ran to  secure  a  refund  of  the  amount  advanced  and  this 
action  instead  of  being  a  prejudice  to  defendant  was  in  his 
interest. 

Defendant  claims  that  he  suffered  prejudice  by  lack  of 
notice  and  states  that  having  no  such  notice  he  made  a 
settlement  with  Moran  in  December,  1910.  His  own  tes- 
timony shows  that  it  was  not  a  settlement  on  joint  account 
but  a  compromise  settlement  in  which  defendant  accepted 
for  money  loaned  a  less  sum  than  the  principal  amount  of 
the  debt.  At  the  same  time  other  creditors  of  Moran  were 
pursuing  him  in  the  courts  and  securing  judgments.  The 
defendant  states  as  a  matter  of  opinion  that  he  thinks  he 
might  have  recovered  from  Moran.  The  fact  that  several 
others  made  the  attempt  during  the  same  period  and  failed, 
discredits  his  opinion.  He  has  practically  made  no  showing 
of  actual  loss  or  prejudice  resulting  from  this  alleged  lack 
'Of  notice. 

Judgment  will  be  for  plaintiff  for  Sycee  Tls.  2,000  with 
costs  of  this  suit.  No  interest  will  be  allowed  for  two 
reasons;  (1)  because  the  guaranty  was  limited  to  a  fixed 
amount  and,   (2)  because  no  evidence  is  submitted  of  par- 


270  I   EXTRATERRITORIAL   CASES. 

ticulars  of  demand  as  of  a  definite  date,  such  as  to  enable 
the  oourt  to  determine  the  actual  time  when  defendant's 
liability  attached. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Woosung-Hankow  Pilot  Association  v.  George  Rutland. 

[Civil   action    No.    104;    filed    May   9,    1912.] 

SYLLABUS. 
(By  the  Editor.) 

1.  CONTRACTS:    ARTICLES  OF  ASSOCIATION.     Where   a   member   of  an 

association  signs  its  articles,  undertaking  certain  obligations,  he 
will  ordinarily  be  treated  as  having  entered  into  a  contract 
with  it. 

2.  Id.:  Id.:  Restraint  of  Trade.     But  where  such  articles  forbid  the 

members  to  accept  outside  employment  and  the  evident  purpose 
is  to  stifle  competition  they  will  not  be  enforced. 

Messrs.  H.  P.  Wilkinson,  S.  H.  McKean  and  J.  W.  Rice, 
for  plaintiff. 

Messrs.  Jernigan  &  Fessenden,  for  defendant. 

Thayer,  J.: 

This  is  an  action  by  the  Woosung-Hankow  Pilot  Associa- 
tion against  George  Rutland,  at  one  time  a  member  of  said 
association,  seeking  an  injunction  restraining  him  from  pur- 
suing his  vocation  as  a  pilot  except  in  conformity  with  the 
articles  of  said  association.  The  members  of  the  associa- 
tion are  pilots  for  vessels  on  the  Yangtze  Kiang  between 
Woosung  and  Hankow. 

The  navigating  channel  of  said  river  is  more  or  less 
dangerous.  Not  only  are  there  varying  depths  of  water  at 
different  seasons  of  the  year,  from  low  water  to  flood  con- 
ditions, but  the  channel  is  subject  to  frequent  changes  which 
make  navigation  difficult.  The  service  of  pilotage  can  only 
be  rendered  by  competent  men  who  have  made  themselves 
familiar  with  the  river  and  its  varying  conditions  and  is 
required  by  numerous  steamers  engaged  in  commercial  traf- 
fic thereon  for  a  distance  of  several  hundred  miles.     There 


W.-H.  PILOT  ASSOC.  V.  BUTLAND,  MAY  9,   1912.  271 

is  no  law  regulating  this  service  or  prescribing  the  condi- 
tions under  which  individuals  may  engage  therein.  Any  one 
who  can  secure  employment  may  undertake  to  act  as  a  pilot 
but  for  obvious  reasons  no  one  is  likely  to  obtain  such  work 
•  who  has  not  had  more  or  less  training  and  experience  in 
navigation  and  who  is  not  also  well  acquainted  with  the  diffi- 
culties of  navigating  this  particular  river. 

Aside  from  Japanese  and  Chinese  pilots,  there  are  in 
Shanghai  from  thirty  to  forty  engaged  in  such  service.  In 
the  exercise  of  their  calling  conditions  of  demand  and  supply 
create  competition  in  rates.  But  the  matter  of  rates  is  only 
a  single  element  in  the  difficulties  with  which  these  compet- 
ing pilots  meet.  They  are  of  varying  experience,  skill  and 
reliability  and  the  serious  risks  in  the  navigation  of  the 
river  and  the  possible  commercial  damages  from  unskilled 
or  reckless  service,  add  elements  of  great  importance  when 
consideration  is  given  to  their  calling  as  a  profession  or 
business.  The  exercise  of  these  functions  carries  with  it 
necessariFy  serious  responsibilities.  Unskilled  or  careless 
work  may  result  in  delay  or  wreckage  which  will  sound  in 
financial  damages.  These  and  other  considerations  operated 
to  induce  the  members  of  this  profession  to  seek  some  form 
of  co-operation.  The  plaintiff  association  grew  out  of  these 
conditions  and  is  in  succession  to  several  previous  associa- 
tions of  a  more  or  less  similar  character. 

While  in  the  course  of  formation,  and  before  incorpora- 
tion, a  memorandum  of  association  was  made  and  signed 
by  each  of  the  parties  interested  therein  setting  forth  in 
great  detail  the  objects  for  which  the  company  was  to  be 
established.  No  less  than  twenty-one  separate  paragraphs 
were  used  in  reciting  the  objects  and  powers  of  the  com- 
pany. The  powers  thus  recited  are  remarkably  broad. 
They  include  not  only  provisions  obviously  essential  to 
an  organization  of  this  character  but  many  extraordinary 
powers  which  common  experience  has  demonstrated  cannot 
be  safely  entrusted  to  any  corporation  except  under  severe 
restrictions  none  of  which  are  imposed  in  this  instance. 

It  would  appear  that  the  entrusting  of  such  broad  powers, 
without  restrictions  of  any  kind,  to  such   a  body  of  men,  is 


272  I  EXTRATERRITORIAL  CASES. 

a  travesty  on  corporate  creation.  This  is  no  reflection  on 
the  abihty  or  character  of  these  gentlemen.  They  are  un- 
doubtedly men  of  more  than  average  ability.  They  are 
mostly  recruited  from  the  list  of  master-mariners  and  it  is 
traditional  that  life  at  sea  develops  robustness  of  character 
and  honesty  of  purpose ;  but  it  does  not  ordinarily  give  busi- 
ness training  and  boards  of  directors  of  important  financial 
and  business  institutions  are  not  often  exclusively  composed 
of  recruits  from  second,  third  and  fourth  class  officers  of 
the  minor  merchant  marine.  The  Court  regards  it  as  cer- 
tain that  any  one  who  allies  himself  with  an  organization  of 
pilots,  whose  main  purpose  is  undoubtedly  centred  on  pro- 
moting the  simple  work  of  their  profession,  with  powers  such 
as  are  conferred  in  this  case,  jeopardises  both  his  future  and 
his  fortune.  It  is  very  easy  to  see  how  the  exercise  of  such 
powers  by  unskilled  tho  honest  men  would  be  most  likely 
to  lead  to  disaster. 

Articles  of  Association  were  also  formulated  and  were 
signed  by  each  of  the  parties.     Subsequently,  on  October  16, 

1911,  said  Memorandum  and  Articles  of  Association  were 
registered  under  the  Hongkong  Ordinances  as  a  company 
"limited  by  guarantee."  The  limit  of  liability  of  any  mem- 
ber in  case  of  liquidation  of  the  company  is  taels  one  hundred. 
There  were  twenty-seven  subscribers.  It  is  thus  evident 
that  the  company  was  not  over-capitalized.  When  consider- 
ation is  given  to  the  extensive  powers  conferred  upon  the 
company  it  is  apparent  that  extraordinary  care  was  exercised 
to  limit  the  liability  of  individual  members  to  a  ridiculously 
small  sum. 

The  defendant  was  one  of  the  chief  promoters  of  the  com- 
pany and,  after  its  full  organization,  one  of  its  governing 
committee.  Some  time  in  January,  1912,  the  defendant  be- 
came dissatisfied  and  submitted  his  resignation.  Shortly 
thereafter  he  withdrew  his  resignation  but  early  in  March, 

1912,  he  renewed  it  and  immediately  engaged  in  pilotage  on 
the  Yangtze  River  independently  of  said  association.  The 
plaintiff  association  then  entered  this  suit. 

The  complaint  is  in  substance  that  the  defendant  has 
ignored  the  obligations  he  had  undertaken  as  a  member  of 


W.-H.  PILOT  ASSOC.  V.  RUTLAND,  MAY  9,  1912.  273 

said  association,  has  severed  or  attempted  to  sever  his  mem- 
bership therein  and  especially  that  he  has,  since  March  7, 
1912,  carried  on  the  trade  of  a  pilot  on  the  Yangtze  River 
between  Woosung  and  Hankow,  in  breach  of  Article  9  which 
reads : 

"Members  of  the  Association  shall  accept  any  employment  recom- 
mended to  them  by  the  Association — as  Yang-tze  pilots — whether  as 
principal  or  assistant,  and  shall  not  accept  any  employment  as  a 
Yangtze  pilot  not  ?i  recommended  without  the  permission  of  the 
Associat  on." 

The  plaintiff  avers  that  by  reason  of  this  breach  of  con- 
tract it  has  suffered  damage  and  loss  and  prays  that  an  in- 
junction may  issue  restraining  the  defendant  for  two  years 
from  March  7,  1912,  from  carrying  on  the  trade  of  a  pilot  on 
the  River  Yangtze  from  Woosung  to  Hankow  or  the  in- 
termediate ports.  This  prayer  is  based  on  Article  10  of  the 
Association  which  reads: 

"Members  of  the  Association  who  shall  resign  their  membership 
pursuant  to  Article  23,  or  who  may  be  expelled  pursuant  to  Article 
19,  shall  not  for  two  years  after  such  resignation  carry  on  the  trade 
or  calling  of  pilots  on  the  River  Yangtze  from  Woosung  to  Hankow 
or  intermediate  ports."' 

Some  testimony  was  given  by  the  defendant  tending  to 
show  that  possibly  there  was  some  irregularity  in  the  prepa- 
ration and  signing  of  the  papers  before  their  submission  to 
the  Honkgong  authorities  but  the  evidence  was  not  con- 
vincing. The  defendant  signed  all  the  papers  and  initialled 
the  interlineations  which  appear  on  the  original  printed  copy 
of  the  Articles  registered  in  Hongkong.  Not  only  that  but 
he  accepted  a  position  on  the  governing  board  of  the  com- 
pany, participated  in  the  administration  of  its  business  and 
accepted  and  discharged  assignments  to  duty  from  the 
association.  Under  these  circumstances  he  is  effectually 
estopped  from  denying  that  the  association  was  regularly 
organized.  Every  step  was  taken  apparently  with  his  full 
knowledge.  It  must  be  presumed  that  he  had  full  knowledge 
of  the  legal  effect  of  his  acts. 

Moreover  it  appears  that  he  was  one  of  the  chief  promoters 

14008  O.  W. ^18 


274  I   EXTRATERRITORIAL  CASES. 

of  the  company  and  it  does  not  appear  that  at  any  stage  he 
objected  to  any  of  the  Articles.  On  the  contrary  it  is  pretty 
well  established  that  he  was  mainly  responsible  for  these 
provisions  in  the  Articles  which  he  is  the  first  to  deliberately 
ignore.  Under  these  circumstances  the  defendant  does  not 
occupy  a  position  in  this  case  which  would  appeal  strongly 
to  any  court.  He  is  claiming  a  release  from  obligations 
which  he  has  deliberately  assumed  and  which  he  has  per- 
suaded others  to  assume.  It  is  a  fundamental  rule  that  a 
person  of  mature  age  who  has  deliberately  entered  into  con- 
tract obligations  will  not  be  allowed  to  repudiate  them  for 
slight  reasons. 

The  evidence  in  the  record  relative  to  the  formation  of  the 
company  furnishes  no  sufficient  ground  upon  which  to  base 
the  release  of  the  defendant  from  these  obligations.  The 
defendant  cannot  escape  unless,  for  reasons  disclosed  in  the 
evidence  and  in  its  Articles,  it  should  be  found  that  the  asso- 
ciation was  organized  and  is  maintained  for  an  illegal 
purpose. 

These  grounds  of  defense  may  be  briefly  stated: 
That  the  Articles  of  Association  inevitably  tend  and  were 
adopted  for  the  purpose : 

1.  To  t^tifle  free  competition. 

2.  To  establish  and  maintain  arbitrary  rates. 

3.  To  increase  rates  then  prevailing. 

4.  To  establish  a  monopoly  of  the  pilotage  business  on  the  Yangtze 
River. 

5.  That  these  several  provisions  operate  in  restraint  of  trade. 

Counsel  on  either  side  have  cited  numerous  authorities  in 
support  of  their  several  contentions  respecting  the  law  appli- 
cable to  this  association.  As  applied  to  the  varying  facts  of 
the  cases  cited  a  great  conflict  of  authority  is  apparent.  But 
we  believe  that  the  conflict  is  more  apparent  than  real  and 
is  due  to  a  confusion  of  the  mixed  elements  in  many  cases 
in  which  it  is  difficult  to  determine  the  chief  and  controlling 
purpose  of  the  combination  complained  of.  This  associa- 
tion is  composed  of  pilots.  It  goes  without  saying  that  they 
may  associate  themselves  together  for  any  legitimate 
purpose.     While  the  article  which  they  deal  in  is  service 


W.-H.  PILOT  ASSOC.  V.  RUTLAND,  MAY  9,  1912.  275 

it  is  highly  skilled  and  special  service  and  is  a  service  in 
which  an  obvious  public  interest  is  involved. 

Counsel  have  contended  that  an  analogy  exists  between 
the  present  combination  and  that  of  a  labor  organization  and 
doubtless  there  are  points  of  similarity.  But  the  points  of 
divergence  are  greater  and  whatever  the  relation  may  be 
each  separate  combination  must  stand  on  its  own  foundation 
and  pass  the  test  of  compliance  with  the  law.  The  vital 
question,  as  it  appears  to  the  court,  is  what  was  the  chief 
purpose  for  which  this  organization  was  created?  We  be- 
lieve that  one  cannot  examine  fairly  the  evidence  in  this 
record  without  being  driven  to  the  conclusion  that  the  chief 
and  all-absorbing  purpose  was  to  stifle  competition  and  to 
make  it  possible  to  maintain  or  increase  rates  existing  at  the 
time  when  the  association  was  formed.  Extraordinary 
efforts  were  made  to  induce  or  compel  every  reputable 
Yangtze  pilot  in  Shanghai,  excepting  Japanese  and  Chinese 
and  the  navy  pilots,  to  join  the  organization  and  to  submit 
himself  to  the  rigorous  rules  forbidding  competition.  Ex- 
traordinarily severe  penalties  were  fixed  for  violation  of 
the  rules,  particularly  when  any  member  desired  to  sever 
his  connection  with  the  association. 

1.  He  was  forbidden  to  pursue  his  calling-  of  pilot  on  the  Yangtze 
for  two  years.      (Article  10). 

2.  Damages  assessed  at  Tls.  200  per  week.      (Article  21). 

3.  Fines  imposed  for  violation  of  Article   9.      (Article   18). 

4.  Retention  for  2  years  of  money  due  to  a  resigning  member  not 
excpedin,L'-  Tls.   3,000.      (Article   24). 

It  is  difficult  to  find  any  reasonable  explanation  of  such 
severe  restrictions  except  that  they  were  intended  to  stop 
competition.  In  the  ordinary  corporation  any  member  or 
shareholder  withdraws  without  other  penalty  than  the 
possible  sacrifice  of  his  share-interest.  Here  one  who  re- 
signs must  pay  an  enormous  penalty  equivalent  to  his  earn- 
ing capacity  for  two  years.  These  provisions  themselves 
furnish  overwhelming  evidence  of  the  real  purpose  of  the 
association.  Indeed  Mr.  Earle,  one  of  the  witnesses  for 
the  plaintiff",  frankly  admitted  on  cross-examination  that 
the  chief  object  of  the  organization  was  to  stop  competition. 


276  I  EXTRATERRITORIAL  CASES. 

Other  witnesses  testified  to  the  same  effect.  And  not  one 
of  the  witnesses  testified  to  the  contrary.  The  Court  must 
hold  this  as  one  of  the  material  facts  established  by  the 
evidence.  The  main  purpose  was  to  establish  a  monopoly 
of  the  pilotage  business  on  the  Yangtze  River.  The  results 
achieved  strongly  confirm  this  view.  The  association 
started  with  twenty-seven  members.  The  testimony  con- 
flicts as  to  how  many  more  active  Yangtze  pilots  there 
were  outside  the  combination.  But  it  is  reasonably  well 
established  that  there  were  not  more  than  five  or  six,  aside 
from  the  Japanese,  Chinese  and  naval  pilots,  and  the  asso- 
ciation established  friendly  and  reciprocal  relations  with 
the  Japanese  pilots.  It  was  testified  that  the  association 
controlled  about  ninety  per  cent  of  the  whole  business. 
There  is  also  in  the  record  uncontradicted  testimony  that 
the  Board  of  Directors  authorized  the  cutting  of  rates  when 
necessary  to  stifle  competition.  It  is  shown  by  a  prepon- 
derance of  testimony  that  rates  were  actually  increased. 
The  fact  that  the  main  object  of  the  company  was  to 
establish  a  monopoly  as  stated  is  supported  by  an  over- 
whelming preponderance  of  evidence. 

The  remedy  prayed  for  in  this  case  is  a  restraining  order 
requiring  the  defendant  to  abstain  from  exercising  his  pro- 
fession as  a  pilot  on  the  Yangtze  River  for  the  period  of 
two  years.  This  is  Specifically  provided  for  in  the  Articles 
of  Association  to  which  the  defendant  assented.  Treating 
this  defendant  as  in  contractual  relations  with  the  plaintiff 
company  whose  chief  purpose  is  to  establish  a  monopoly, 
can  the  penalty  for  his  disobedience  be  enforced  by  this 
Court?  It  is  a  well  recognized  principle  in  the  common  law 
that  contracts  tending  to  stifle  competition  and  create  a 
monopoly  are  invalid  and  will  not  be  enforced  as  being 
against  public  policy.  That  principle,  substantially  as 
stated,  remains  in  full  force  in  American  jurisdictions 
except  where  modified  by  statutory  provisions.  Analysis 
of  the  numerous  authorities  cited  by  counsel  for  the  plaintiff 
does  not  convince  the  Court  that  the  rule  stated  has  been 
materially  modified.  The  most  of  them  relate  to  contracts 
alleged  to  be  in  restraint  of  trade.  The  doctrine  that  some 
contracts  in  restraint  of  trade  mav  be  valid  if  the  restraint 


W.-H.  PILOT  ASSOC.  V.  BUTLAND,  MAY  9,  1912.  277 

can  be  regarded  as  reasonable,  is  not  new  doctrine.  As 
is  well  known,  that  doctrine  has  been  recently  reannounced 
and  defined  by  the  Supreme  Court  in  the  trust  cases. ^ 

"Contracts  whereby  one  or  both  of  the  parties  thereto  are  restrained 
from  engaging  in  a  business,  trade,  or  profession  are  of  two  kinds: 
(a)  those  which  are  a  part  of  a  transaction  involving  the  good-will 
of  the  business,  which  are  designed  to  protect  such  good-will,  and  to 
that  end  to  restrain  some  person  or  persons  from  engaging  in  busi- 
ness, and  (6)  those  which  have  for  their  primary  object  not  the 
protection  of  good-will,  but  the  formation  of  a  monopoly  in  a  given 
business.  The  first  class,  if  objectionable  at  all,  is  so  because  the 
restraint  is  unreasonable;   the  second  is  always  illegal.^ 

"Monopoly  contracts  are  invalid  altho  they  may  not  succeed  in 
establishing  an  absolutely  perfect  monopoly.  It  is  their  tendency 
rather   than   their  ultimate   effect   that  the    law    reproves."  ^ 

The  Court  is  also  of  the  opinion  that  the  restraint  pro- 
posed to  be  put  upon  a  member  who  resigns  from  the 
Association  by  Article  9  is  unreasonable  in  view  of  the 
character  of  the  association  and  of  the  trade  or  profession 
in  which  its  members  are  engaged  and  the  provisions  of 
this  Article  are  not  enforcible  against  this  defendant.^ 

Nor  are  the  duration  of  the  contract  nor  the  area  over 
which  it  is  meant  to  extend  determining  factors  as  regards 
its  validity  but  are  elements  in  the  general  consideration 
by  the  Court  of  the  reasonableness  of  the  transaction  in 
the  particular  case.^ 

The  finding  must  be  for  the  defendant.  The  bill  is  dis- 
missed with  costs. 

On  June  19,  1913,  the  same  Judge  rendered  a  similar  judgment 
in  an  action  by  the  same  plaintiff  against  J.  Seymour  wherein  it  was 
observed : 

The  defendant  is  simply  another  American  member  of  the  same 
association  which  is  now  seeking  the  same  remedy.  The  plaintiff 
cannot  succeed  in  this  case  unless  the  Court  reverses  its  judgment^ 
announced  after  full  hearing,  in  the  Butland  case. 

'Standard  Oil  Co.  v.  U.  S.,  221  U.  S.  1,  55  L.  ed.  619;  U.  S.  v. 
American  Tobacco  Co.,  221  U.  S.  106,  55  L.  ed.  663,  citing  U.  S. 
V.  Freight  Assn.,  166  U.  S.  290,  41  L.  ed.  1001.     Ed. 

'  Page,  Contracts,  I,  sec.  373. 

='Id.,  sec.  433. 

^  Anson,  Law  of  Contracts,  229. 

'  Id.  230.     Cf .  John  Layton  Co.  v.  Blomberg,  post,  p.  818.     Ed. 


278  I   EXTRATERRITORIAL  CASES. 

It  is  settled  law  that  a  judgment  of  a  court  of  competent  jurisdic- 
tion upon  a  question  directly  involved  in  one  suit  is  conclusive  as  to 
that  question  in  another  suit  between  the  same  parties." 

While  the  defendant  is  not  the  same  in  this  case,  he  belongs  to 
exactly  the  same  class  and  it  is  not  claimed  that  he  occupies  any 
other  or  different  position,  either  in  fact  or  law,  than  that  occupied 
by  Butland.  It  is  difficult  to  see  why  the  principle  stated  is  not  ap- 
plicable to  this  case  since  the  vital  question  presented  for  adjudication 
is  exactly  the  same  as  it  would  have  been  if  the  complaint  had  been 
again  filed  against  the  former  defendant,  Butland.  It  is  true  that 
the  doctrine  of  res  adjudicata  requires  identity  of  subject  matter  and 
identity  of  pai'ties  but  the  rule  of  stare  decisis  involves  no  such  re- 
quirement. The  force  of  this  suggestion  may  be  appi-eciated  when 
attention  is  called  to  the  fact  that  the  decision  in  the  Butland  case 
was  announced  in  May,  1912,  and  that  following  on  said  decision  the 
present  defendant  terminated  his  membership  in  the  plaintiff  associa- 
tion and  shortly  thereafter  resumed  work  as  an  independent  pilot. 
It  does  not  require  proof  that  he  did  so  relying  on  the  adjudication 
of  this  Court  in  the  Butland  case.  No  appeal  was  taken  from  that 
decision  and  it  stands  as  the  law  of  the  case  for  this  jurisdiction. 
Has  it  not  become  such  a  rule  of  property  as  the  Court  is  now  bound 
to  maintain  under  the  circumstances  of  these  cases?  At  least  one 
other  party  has  taken  the  same  course  as  suit  against  him  is  now 
pending  in  this  Court. 

It  is  a  familiar  rule  that  when  judicial  decisions  may  fairly  be 
presumed  to  have  entered  into  the  business  transactions  of  a  country 
and  have  been  acted  upon  as  a  rule  of  contracts  and  property  it  is 
the  duty  of  the  court,  on  the  principle  of  stare  decisis,  to  adhere  to 
such  decisions  without  regard  to  how  it  might  be  inclined  to  decide 
if  the  question  were  new. 

"A  deliberate  or  solemn  decision  of  a  court  or  judge  made  after 
full  argument  on  a  question  of  law  fairly  arising  in  a  case  and 
necessary  to  its  determination,  is  an  authority  or  binding  precedent 
in  the  same  court,  or  in  other  courts  of  equal  or  lower  rank  within 
the  same  jurisdiction,  in  subsequent  cases  where  the  very  point  is 
again  presented;  but  the  degree  of  authority  belonging  to  such  prece- 
dent depends,  of  necessity,  on  its  agreement  with  the  spirit  of  the 
times  or  the  judgment  of  subsequent  tribunals  upon  its  correctness 
as  a  statement  of  the  existing  or  actual  law  and  the  compulsion  or 
exigency  of  the  doctrine  is,  in  the  last  analysis,  moral  and  intellectual, 
rather  than   arbitrary   and  inflexible." ' 

It  is  competent  of  course  for  the  appellate  court  to  reverse  that 
decision  and  to  apply  the  rule  as  it  sees  fit  but  the  decision  in  the 
Butland  case  may  be  rightfully  regarded  as  establishing  the  rule 
of  property  for  this  jurisdiction.  In  the  opinion  of  the  Court  the 
rule  of  stare  decisis  is  applicable  in  this  case  and  is  in  itself  sufficient 
to  justify  the  dismissal  of  this  petition. 

•Russel  V.  Place,  94  U.  S.  006,  24  L.  ed.  214. 
'  Chamberlain,  Stare  Decisis,  19. 


UNITED  STATES  V.  LUNT,  MAY  17,  1912.  279 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Carroll  P.  Lunt. 

[Criminal  Cause  No.  66;   filed   May  17,  1912.] 

SYLLABUS. 

(By  the  Editor.) 

HOMICIDE:    NEGLIGENCE:    EVIDENCE    reviewed   and   found    insufficient 
to  show  criminal  intent  or   carelessness. 

Frayik  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prose- 
cution. 
Nemo,  contra. 

Thayer,  J.: 

The  District  Attorney  has  correctly  stated  the  law  de- 
fining the  various  forms  of  homicide.  The  defendant  was 
in  a  boat  with  four  Chinamen,  three  of  whom  were  boatmen.- 
He. had  with  him  an  ordinary  sporting  gun  which  he  in- 
tended to  use  in  shooting  birds.  After  sailing  some  time 
and  no  birds  having  come  in  range  he  broke  the  gun  and 
lay  down  for  rest  putting  his  leg  over  the  gun  so  as  to 
prevent  it  being  handled  by  the  Chinese  should  he  fall  asleep. 
When  later  he  got  up  he  attempted  to  close  the  gun.  The 
parts  did  not  work  smoothly.  He  was  compelled  to  use 
considerable  muscular  force  and  the  parts  finally  came 
together  with  a  shock  and  at  the  same  time  one  of  the 
cartridges  in  the  gun  exploded.  A  Chinese  boatman,  seated 
only  a  few  feet  from  the  defendant  and  a  little  above  him 
at  the  time  of  the  discharge,  received  the  contents  of  the 
cartridge  in  the  side  of  his  face  and  neck,  and  death  ensued 
almost  instantaneously.  There  had  been  no  trouble  be- 
tween him  and  the  defendant  and  the  evidence  discloses  an 
entire  want  of  motive  for  an  attack,  and  hence  no  criminal 
intent.  It  was  a  pure  accident  and  the  sole  question  is 
whether  the  defendant  so  handled  the  gun  at  the  time  of 
its  discharge  as  to  be  reasonably  guilty  of  criminal  care- 
lessness. He  was  not  at  the  time  engaged  in  any  unlawful 
act.  Game  is  plentiful  about  Harbin  and  it  was  entirely 
legitimate  for  him  to  engage  in  sport.  He  was  out  partly 
for  that  purpose  and  his  companions  must  have  been  fully 


280  1   EXTRATERRITORIAL  CASES. 

aware  of  that  fact.  His  purpose  and  surroundings  were 
such  as  to  warrant  the  handling  of  the  gun.  He  was  bound 
to  use  care  in  doing  so  but  under  the  circumstances  of 
this  case  he  cannot  be  presumed  to  have  been  criminally 
careless.  Unless  the  contrary  is  shown  by  positive  evidence 
the  defendant  is  entitled  to  the  presumption  of  innocence 
and  carefulness. 

Under  ordinary  conditions  the  mere  closing  of  the  breach 
of  a  gun  would  not  cause  its  discharge  and  testimony  was 
given  by  a  gun  expert  that  such  closing  was  not  considered 
at  all  dangerous.  When  the  moment  is  reached  for  firing 
the  trigger  is  pulled,  a  spring  is  released  and  a  sharp 
blow  follows  upon  the  sensitized  cap  and  the  discharge 
immediately  occurs.  Such  is  the  purpose  of  the  mecha- 
nism and  if  it  fail  to  meet  that  purpose  the  gun  is  fatally 
defective.  There  was  no  evidence  that  such  was  the  case, 
nor  that  the  defendant  had  any  reason  to  doubt  that 
the  gun  was  in  normal  condition.  It  is  also  well  known 
that  notwithstanding  the  exercise  of  great  care  in  the 
handling  of  firearms  accidents  often  occur  terminating  most 
unfortunately  and  the  Court  is  well  satisfied  from  the  evi- 
dence that  this  is  one  of  those  unfortunate  cases  where 
the  wound  was  inflicted  and  death  occurred  thru  pure 
misadventure. 

Under  these  circumstances  no  criminal  responsibility 
attaches  to  the  defendant  and  the  Court  has  no  hesitation 
in  finding  a  verdict  of  not  guilty.  The  defendant  will  be 
discharged  and  the  shotgun  returned  to  its  owner. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Louis  Duquesne,  Agent  of  the  Mission  Catholique  du 
Tchely  Sud  Est,  v.  James  H.  Brown. 

[Civil  action  No.  108;   filed  October  18,  1912.] 

SYLLABUS. 
(By  the  Editor.) 

1  CITIZENSHIP  once  established,  continues  until  change  is  proved. 
2.  REMEDIES:   PLEADING.     Adequate  remedy  at  law  held  not  apparent 
from  pleading  assailed. 


DUQUESNE  V.  BROWN,  OCT.    18,   1912.  281 

3.  PARTIES:  JOINDER.  Where  it  appears  that  defendant  in  an  action 
involving  title  and  possession  has  transferred  his  interest  in 
the  property  an  application  to  join  the  transferee  vv^ill  be  granted. 

Edgar  Pierce  Allen,  Esq.,  for  plaintiff. 
Messrs.  Jernigan  &  Fessenden,  for  defendant. 


Thayer,  J.: 

This  action  involves  the  right  of  possession  and  right 
of  property  of  certain  land.  Defendant  has  filed  a  demurrer 
and  plaintiff  a  petition  seeking  to  join  a  third  party  as 
defendant.  Upon  call  of  the  case  defendant  entered  an 
oral  plea  that  he  is  not  a  citizen  of  the  United  States. 
That  is  of  course  a  plea  to  the  jurisdiction  of  the  court; 
for  if  upon  the  evidence  the  court  finds  that  he  is  not  a 
citizen  it  has  no  jurisdiction.  The  evidence,  however,  shows 
that  defendant  has,  for  several  years,  claimed  to  be  a  nat- 
uralized citizen  of  the  United  States.  He  has  urgentlj/ 
solicited  from  the  administrative  branch  of  the  Government 
protection  for  his  personal  and  property  rights  in  China. 
He  has  filed  in  court  v^hat  purports  to  be  a  certified  copy 
of  his  naturalization  papers  issuing  from  a  court  at  Chi- 
cago. The  copy  does  not  appear  to  be  as  fully  authenti- 
cated as  might  be  technically  required  in  order  to  give  it 
full  effect  as  evidence  but  no  reason  is  apparent  for  doubt- 
ing its  authenticity. 

Now  what  reason  is  suggested  on  defendant's  behalf 
why  the  court  should  ignore  the  certificate  of  naturaliza- 
tion? The  defendant  states  that  he  has  initiated  a  proceed- 
ing in  the  country  of  his  birth  to  repatriate  himself  as  a 
Russian  subject  but  that  it  has  not  been  completed.  His 
present  status  continues  until  his  citizenship  is  changed  and 
his  plea  must  be  overruled. 

The  defendant  complains  bitterly  of  the  attitude  assumed 
tov^ard  him  by  the  administrative  branch.  The  court  is  not 
concerned  in  that  matter.  The  duty  of  the  administrative 
branch  is  one  that  concerns  itself,  except  in  particular  cases 
where  resort  may  be  had  to  the  Judicial  Department  by  one 
seeking  to  require  by  mandamus  the  performance  of  some 
executive  act  which  the  appropriate  officer  has  refused  or 
neglected  to  perform.     That  remedy  has  not  been  invoked 


282  I  EXTRATERRITORIAL  CASES. 

by  defendant.  The  question  as  to  whether  the  Depart- 
ment of  State  in  deahng  with  him  may  have  acted  in 
violation  of  his  legal  rights  is  not  before  the  Couit. 

The  demurrer,  so  far  as  it  states  any  ground  of  which 
the  court  can  take  cognizance,  is  an  objection  to  the  com- 
plaint as  being  a  suit  in  equity  rather  than  a  suit  on 
the  law  side  of  the  court,  averring  that  the  plaintiff  has 
a  plain,  simple  and  complete  remedy  at  law.  That  seems  to 
be  the  only  point  suggested  on  the  face  of  the  demurrer. 
The  objection  is  not  well  taken.  Considering  the  general 
character  of  the  claim  set  forth  in  the  complaint,  it  seems 
to  the  couit  that  it  would  have  been  difficult  if  not  im- 
possible for  plaintiff  to  have  secured  an  adequate  remedy 
without  proceeding  in  equity.  The  demurrer  must  be  over- 
ruled. 

The  application  to  join  Fanny  Beck  as  a  defendant  is 
based  upon  affidavits  of  plaintiff's  counsel  setting  forth  in 
substance  that  defendant  has  stated  that  he  has  transferred 
all  his  right,  title  and  interest  in  the  disputed  premises  to 
one  Fanny  Beck.  The  defendant  has  likewise  so  stated  in 
open  court.  The  application  is  granted  and,  as  Fanny  Beck 
is  a  non-resident,  service  will  be  made  upon  her  by  publica- 
tion. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Adolph  Grimsinger. 

[Criminal  cause  No.  69;  filed  October  30,  1912.] 

SYLLABUS. 
(By  the  Editor.) 

1.  CRIMES:    Escape:   Circumstantial  Evidence  found  sufficient  to 

show  that  the  accused  aided  a  fellow  prisoner  to  escape  but 
not  to  show  that  the  assault  on  the  prison  guard  was  for  that 
purpose  but  rather  to  effect  his  ov/n  escape. 

2.  Id.  :    Penalties  fixed  by  the  special  acts  of  Congress  deemed  not 

binding  on  this  court. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecu- 
tion. 

Messrs.  Fleming  &  Rice,  for  defendant. 


UNITED  STATES  V.  GRIMSINGER,  OCT.  30,  1912.         283 

Thayer,  J.: 

The  defendant  on  June  28,  1912,  was  brought  to  the 
American  Prison  in  Shanghai  by  the  municipal  police, 
having  been  arrested  as  a  deserter  from  the  United  States 
Navy,  pursuant  to  a  reward  offered.  He  was  received  in 
said  prison  and  detained  for  delivery  to  the  proper  naval 
authorities.  On  the  evening  of  the  same  day  he  escaped. 
Two  or  three  days  thereafter  he  was  arrested  and  brought 
before  the  American  Consular  Court  under  warrant  duly 
issued,  tried  for  prison  breach,  found  guilty  and  sentenced 
to  sixty  days  imprisonment.  At  the  same  time  additional 
charges  were  made  against  him,  first,  for  assault,  second, 
for  robbery  of  prison  keys,  and  third,  for  aiding  in  the 
escape  from  prison  of  one  James  G.  B.  Hadley  at  that  time 
confined  under  sentence  from  this  court.  Preliminary 
examinations  were  held  and  the  court  dismissed  the  charge 
of  robbery  and  committed  the  defendant  to  this  court  for 
trial  on  the  other  two  charges.  No  appeal  was  taken  from, 
the  sentence  of  the  Consular  Court  for  prison  breach  and 
the  defendant  entered  upon  and  has  served  his  sentence 
therefor. 

During  the  course  of  trial  in  this  court  counsel  offered 
evidence  that  at  the  time  of  prison  breach  the  defendant 
was  not  detained  in  jail  under  a  regularly  issued  warrant. 
Such  evidence  must  be  excluded  from  consideration  as  in- 
admissible. Full  effect  must  be  given  to  the  judgment  of 
the  Consular  Court.  No  appeal  having  been  taken  its 
validity  cannot  be  attacked  collaterally. 

Before  trial  in  this  court  the  District  Attorney  filed  an 
information  covering  the  charges  on  which  the  defendant 
was  committed  to  this  court.  A  plea  of  former  conviction 
was  filed  and  overruled  by  the  Court  as  having  no  merit. 

The  evidence  establishes  beyond  reasonable  doubt  that 
at  or  about  9.30  o'clock  of  the  evening  of  June  28,  1912,  the 
defendant  was  confined  in  a  cell  of  said  prison;  that  he 
called  the  guard  and  asked  to  leave  said  cell  to  visit  a  lava- 
tory located  within  the  prison  precincts;  that  the  guard 
opened  the  cell  in  response  to  said  request  and  as  he  turned 
his  back  toward  the  prisoner  received  from  him  on  the  back 


284  I  EXTRATERRITORIAL  CASES. 

and  top  of  his  head  a  violent  blow  from  a  water  bottle 
partially  filled ;  that  as  a  result  of  this  blow  the  guard  was 
seriously  injured  and  became  partially  or  wholly  uncon- 
scious; that  the  defendant  escaped  and  also  Hadley,  the 
prisoner  who  was  confined  in  another  cell;  that  the  keys 
to  all  of  the  cells  were  at  that  time  in  the  possession  of 
the  said  guard  and  that  the  only  obvious  means  by  which 
Hadley  could  have  been  released  was  by  the  defendant 
obtaining  possession  of  these  keys  and  opening  the  cell 
door. 

The  first  of  the  two  sections  under  which  the  information 
is  laid  reads  as  follows: 

"That  if  any  person,  with  intent  to  effect  or  aid  the  escape  of  a 
person  imprisoned  in  any  penitentiary  or  sentenced  to  such  impris- 
onment, shall  assault  any  officer  or  person  having  the  charge  or 
custody  of  the  person  so  imprisoned  or  sentenced,  such  person,  upon 
conviction  thereof,  shall  be  punished  by  imprisonment  in  the  peni- 
tentiary not  less  than  two  nor  more  than  fifteen  years."  ^ 

In  order  to  convict  under  this  statute  the  evidence  must 
establish  that  the  assault  was  made  with  intent  to  efi'ect 
or  aid  the  escape  of  a  person  in  prison.  There  is  no  direct 
evidence  that  the  assault  on  the  prison  attendant  was  made 
with  intent  of  effecting  or  aiding  Hadley's  escape.  -It  is 
reasonable  to  presume,  in  the  absence  of  contrary  evidence, 
that  the  defendant's  purpose  was  to  make  his  own  escape, 
that  the  assault  was  made  for  that  purpose  and  that  the 
unlocking  of  Hadley's  cell  followed  without  premeditation. 
In  the  absence  of  evidence  establishing  such  intent  the 
finding  on  this  count  must  be  not  guilty. 

But  while  there  is  no  direct  evidence  that  defendant  took 
the  keys  after  assaulting  the  prison  guard  and  opened 
Hadley's  cell  door,  the  circumstantial  evidence  is  so  strong 
as  to  satisfy  the  Court  beyond  a  reasonable  doubt  that  he 
did  and  the  finding  must  be  that  he  is  guilty  of  aiding  in  the 
escape  of  Hadley. 

The  penalty  fixed  in  the  second  section  -  invoked,  is  impris- 
onment of  not  less  than  ten  nor  more  than  twenty  years.     Is 


^Act  of  Congress  of  March  3,  1899,  Sess.  Ill,  30  U.  S.  Stats,  at 
Large,  Ch.  429,  tit.  I,  sec.  102. 
'  Id.,  sec.  103. 


UNITED  STATES  V.  GRIMSINGER,  OCT.  3  0,  1912.         285 

this  Court  upon  a  conviction  under  this  statute  bound  by 
the  penal  clause  of  the  statute?  Ordinarily  such  a  question 
would  furnish  its  own  answer  inasmuch  as  the  case  must 
be  exceptional  where  one  part  of  a  statute  is  applicable  and 
the  other  part  not.  That  possibly  such  a  situation  may 
exist  in  this  extraterritorial  jurisdiction  results  from  the 
peculiar  provisions  found  in  the  statutes,  one  of  which  reads 
as  follows : 

"The  punishment  of  crime  provided  for  by  this  title  shall  be  by 
fine  or  imprisonment,  or  both,  at  the  discretion  of  the  officer  ivho 
decides  the  case,  but  subject  to  the  regulations  herein  contained,  and 
such  as  may  hereafter  be  made.  It  shall,  however,  be  the  duty  of 
such  officer  to  award  punishment  accordincj  to  the  magnitude  and 
aggravation  of  the  offense."" 

The  punishments  for  certain  crimes  and  offenses  are  fixed 
under  other  sections  of  the  same  chapter. 

It  is  difficult  to  construe  this  definite  and  specific  language 
otherwise  than  as  disclosing  the  intent  of  Congress  that 
the  fixing  of  penalties  for  the  punishment  of  crimes  in 
this  extraterritorial  jurisdiction  should  be  at  the  discre- 
tion of  the  trial  officer.  Seemingly  the  only  limitation  is 
that  it  is  made  the  duty  of  such  officer,  "to  award  punish- 
ment according  to  the  magnitude  and  aggravation  of  the 
offense."  It  is  extraordinary  that  Congress  deemed  it  wise 
or  necessary  to  give  such  power  to  the  judge  of  any  court. 
It  may  be  accounted  for  by  reason  of  the  fact  that  at  the 
time  when  these  statutes  were  enacted,  as  well  as  at  the 
present  time,  provisions  for  the  execution  of  penalties  in 
the  several  consular  districts  of  China  were  very  meagre 
and  difficulties  in  the  way  of  executing  such  sentences  as 
would  be  imposed  and  executed  by  courts  within  the  United 
States  were  almost,  if  not  quite,  insuperable. 

The  acts  of  Congress  relating  to  Alaska  and  the  District  of 
Columbia,  over  which  the  Government  of  the  United  States 
exercises  exclusive  jurisdiction,  are  "laws  of  the  United 
States"  within  the  meaning  of  the  statute  conferring  juris- 
diction upon  this  couit.*  There  is  nothing  in  the  decision  of 
the  Court  in  the  case  cited  which  suggests  that  the  penalties 


•U.  S.  Rev.  Stats.,  sec.  4101. 
*  Biddle  v.  U.  S.,  ante,  p.  120. 


286  I   EXTRATERRITORIAL   CASES. 

named  in  said  acts  would  be  binding  upon  this  Court  in  case 
of  conviction  for  any  offense  defined  in  those  codes.  In  fact 
obvious  difficulties  would  arise  in  that  respect  since  the 
penalties  fixed  for  similar  olfenses  in  the  two  codes  differ 
from  each  other. '  In  face  of  such  conflict  and  in  the  prac- 
tical difficulties  which  they  present  the  Court  holds  that  the 
section  above  quoted  leaves  the  fixing  of  penalties  for  crim- 
inal offenses  committed  within  this  extraterritorial  juris- 
diction to  the  discretion  of  trial  officers.  For  that  reason  it 
is  not  believed  that  the  Court  is  bound  by  the  penalties  pre- 
scribed in  these  statutes.  The  holding  of  the  Circuit  Court 
of  Appeals  will  be  satisfied  by  regarding  it  as  a  declaration 
that  wherever  any  criminal  offense  is  found  to  be  defined 
in  any  of  the  laws  relating  either  to  Alaska  or  to  the  Dis- 
trict of  Columbia  that  fact  is  sufficient  to  give  this  Court 
jurisdiction  thereunder  for  that  particular  offense  if  com- 
mitted in  China. 

But  while  the  penalties  fixed  in  those  codes  are  not 
binding  on  this  Court  they  may  be  well  utilized  as  guides 
and  treated  with  great  respect.  Any  departure  from  their 
limits  should  be  made  only  on  grounds  which  justly  appeal 
to  the  sound  discretion  of  the  Court. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Adolph  Grimsinger. 

[Criminal   Cause  No.   72;   filed   December  9,   1912.] 

SYLLABUS. 
(By  the  Editor.) 

1.  DESERTION  is  an  offense  at  common  law  and  also  under  the  naval 

regulations. 

2.  Id.  :  Arrest  :   Waiver  of  Process.     Where  the  accused  admits  his 

guilt  when  brought  before  a  magistrate  formal  complaint  and 
warrant  are  unnecessary. 

°  The  solution  of  this  difficulty  has  been  found  by  applying  a  rule  of 
interpretation  as  old  as  the  Twelve  Tables  (V)  that  where  two 
statutes  cover  the  same  subject,  the  later  prevails.  36  Cyc,  1130. 
Ed.     See  post,  p.  937. 


UNITED  STATES  V.  GRIMSINGER,  DEC.   9,   1912.  287 

3.  Id. :  Id.:  Detention.  A  consular  judge  has  power  to  commit  and 
detain  a  deserter  from  the  navy  preparatory  to  delivering  him 
to  the  proper  authorities. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecu- 
tion. 

/.  W.  Rice,  Esq.,  for  defendant. 


Thayer,  J.: 

Defendant  is  charged  with  assault  upon  a  prison  guard. 
After  a  plea  of  "not  guilty"  and  after  the  prosecution  had 
closed  its  case,  the  accused  went  on  the  stand  and  testified 
that  he  committed  the  assault  as  alleged.  He  testified  in 
detail  as  to  how  the  assault  was  committed  without  in- 
dicating any  regret  except  that  he  had  foolishly  involved 
himself  in  further  trouble. 

There  is  no  occasion  to  review  the  evidence.  Counsel  for 
defendant  presents  grounds  upon  which  he  insists  that  his 
client  was  not  in  lawful  custody  when  the  assault  was  com- 
mitted and  that  therefore  he  could  not  be  held  guilty  of  the 
statutory  crime  of  assault  on  a  prison  guard. 

Defendant  was  in  the  naval  service  of  the  United  States. 
He  had  been  given  shore  leave  for  twenty-four  hours  and 
had  not  returned  for  eighteen  days  thereafter.  On  the 
eighteenth  day  he  was  arrested  by  the  municipal  police  of 
Shanghai  and  immediately  brought  to  the  American  Con- 
sular Court.  This  arrest  was  made  by  the  police  at  the 
instance  of  the  commanding  oflftcer  of  the  ship  who  had 
communicated  with  the  police  in  writing,  giving  a  personal 
description  of  the  accused  and-designating  him  at  the  time 
as  a  "straggler".     His  real  status  is  defined  as  follows: 

1.  Absence  without  leave,  with  a  manifest  intention  not  to  return, 
shall  be  regarded  as  desertion. 

2.  Absence  without  leave,  with  a  probability  that  the  person  does 
not  intend  to  desert,  shall  at  first  be  regarded  as  straggling,  but  at 
the  end  of  ten  days  as  desertion.^ 

He  was  brought  before  the  consular  judge  in  the  cus- 
tomary way.     A  police  charge  sheet  was  placed  before  the 


*  U.  S.  Naval  Regulations,  sec.  815. 


288  I  EXTRATERRITORIAL  CASES. 

judge  on  which  the  accused  was  charged  with  "desertion". 
He  was  examined  by  the  consular  judge  and  admitted  that 
he  was  a  deserter  as  charged.  The  judge  then  committed 
him  to  the  consular  prison  for  detention  and  delivery  to 
the  proper  naval  authorities.  A  few  hours  later  in  the 
evening  of  the  same  day,  while  in  said  prison,  the  assault 
confessed  by  him  was  committed.  It  is  material  to  note 
that  no  unreasonable  time  had  elapsed  since  the  committal 
of  the  accused  and  that  it  is  not  claimed  that  there  was 
any  neglect  on  the  part  of  the  proper  officers  to  transfer 
the  accused  to  naval  custody. 

The  first  contention  is  that  the  defendant  was  unlawfully 
arrested  by  the  municipal  police  inasmuch  as  the  arrest 
was  made  without  any  formal  warrant.  We  dismiss  that 
without  further  consideration  as,  whether  or  not  the  arrest 
was  unlawful  on  this  account,  the  accused  was  immediately 
taken  to  the  proper  American  court  to  whose  jurisdiction 
he  was  submitted.  The  consular  judge,  as  was  his  manifest 
duty,  took  jurisdiction.  The  prisoner  not  only  made  no 
objection  to  the  jurisdiction,  but  admitted  his  identity  and 
guilt.  Police  custody  of  the  accused  immediately  ceased. 
The  assault  was  committed  while  he  was  in  consula;  cus- 
tody and  therefore  no  inquiry  is  necessary  respecting  the 
legality  of  police  action.  The  Court,  however,  is  not  at  all 
alarmed  over  the  extraordinary  solicitude  of  counsel  re- 
specting the  danger  suffered  by  the  police  in  rendering 
such  service.  It  corresponds  exactly  to  the  service  rendered 
by  police  in  home  ports,  is  a  valuable  and  necessary  service 
and  whether  or  not  explicitly  provided  for  by  law,  it  is 
not  likely  to  be  condemned  by  the  courts,  nor  is  it  probable 
that  any  deserter  will  challenge  its  effectiveness. 

The  next  point  raised  is  that  the  consular  judge  in  com- 
mitting the  defendant  on  the  confessed  charge  of  desertion 
did  not  have  any  sworn  complaint  before  him  and  did  not 
issue  any  formal  warrant,-  The  consular  judge  testified 
that  on  examination  the  defendant  admitted  his  guilt. 
Under  those  circumstances  the  entry  made  on  the  charge 

■  Citing  Consular  Court  Regulations,  sees.  57  and  58. 


UNITED  STATES  V.  GRIMSINGER,  DEC.  9,  1912.    289 

sheet  and  the  act  of  commitment  obviously  constituted  a 
full  compliance  with  the  Regulations.  A  contrary  conten- 
tion approaches  closely  to  absurdity.  The  consular  judge 
chose  to  act  as  a  committing  magistrate.  The  function  he 
was  performing  was  in  aid  of  the  exercise  of  fuller  powers 
by  another  jurisdiction,  viz.,  the  naval  establishment.  The 
defendant  denies  that  he  had  any  lawful  authority  to  so 
act.  It  is  argued  that  the  crime  of  desertion  from  the  navy 
is  not  a  civil  offence  and  can  only  be  tried  by  a  court 
martial.  If,  as  contended  by  counsel,  no  statute  of  the 
United  States  classifies  desertion  as  a  civil  offence,  then 
resort  may  be  had  to  the  common  law  ^  by  which  desertion 
was  a  civil  offence  and  it  was  declared  to  be  a  felony  by 
statute.^  Jurisdiction  could  have  been  asserted  by  the  con- 
sular judge  under  that  law  and  would  rest  securely  on  that 
foundation.  But  it  is  clearly  sustained  as  well  on  the 
general  police  powers  which  inhere  in  it  as  a  court  of 
general  jurisdiction  in  criminal  matters.  It  is  an  extra- 
territorial court.  The  numerous  cases  cited  by  counsel  all 
relate  to  the  limitations  imposed  upon  courts  at  home 
specially  created  by  statute  and  whose  jurisdictions  are 
usually  clearly  defined.  It  is  well  known  that  in  extra- 
territorial courts  of  the  United  States  the  jurisdiction  is 
not  clearly  defined.  It  is  apparent  that  Congress  recog- 
nized that  in  the  interest  of  the  administration  of  justice 
in  another  country  and  under  novel  and  extraordinary  con- 
ditions it  was  proper  and  safe  to  grant  larger  powers  to 
such  judicial  officers  than  are  granted  in  home  courts  under 
familiar  constitutional  restrictions.^ 

The  consular  judge  ordered  defendant's  detention  and  de- 
livery to  the  naval  authorities.  Manifestly  this  was  a  wise 
and  just  order.  The  Court  is  equally  satisfied  that  it  was  a 
lawful  order,  clearly  within  the  jurisdiction  of  the  court. 
It  follows,  therefore,  that  the  detention  of  the  defendant 
was  lawful  detention. 

The  finding  must  be  guilty. 

'  U.  S.  Rev.  Stats.,  sec.  4086. 
*18  Henry  VI,  C.  19. 
°  In  re  Ross,  ante,  p.  40. 
14008  o.  w. — 19 


290  I   EXTRATERRITORIAL   CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Abdul  Bari  Arcade  Amusement  Company  v.  R.  Hughes 
and  The  Hughes  Musical  Comedy  Company. 

[Civil  action  No.  107;   filed  January  14,  1913.] 

SYLLABUS. 

(By  the  Editor.) 

CONTRACTS:  BREACH:  DAMAGES  for  breach  of  a  contract  to  occupy 
a  theatre  fixed  from  the  booking  sheets  with  deductions  for  un- 
paid reservations  and  profits  earned  from  other  occupancy. 

E.  S.  Moberly  Bell,  Esq.,  for  plaintiff. 
Joseph  W.  Rice,  Esq.,  for  defendant. 

Thayer,  J.: 

This  is  an  action  for  damages  growing  out  of  an  alleged 
breach  of  contract  resulting  from  failure  of  defendant  to 
occupy  plaintiff's  theatre  at  Tientsin  on  nights  contracted 
for.  The  contract  is  evidenced  by  telegrams  passing  be- 
tween the  parties  and  was  not  otherwise  reduced  to  writing. 
There  was  no  specified  number  of  nights  agreed  upon  but 
it  sufficiently  appears  that  the  engagement  between  the 
parties  was  for  more  than  one  night.  Plaintiff  claims 
damages  on  the  basis  of  a  seven  nights'  engagement.  De- 
fendant named  May  8  as  the  date  of  opening  and  four 
plays  in  which  the  company  would  appear.  It  is  fair  to 
assume  that  the  engagement  was  for  a  number  of  nights 
not  less  than  four.  On  May  4  defendant  wired  from 
Shanghai  that  the  company  could  not  arrive  at  Tientsin  on 
the  8th  and  asked  claimant  to  await  receipt  of  letter.  He 
did  not  at  that  time  cancel  the  engagement  or  advise  claim- 
ant that  the  company  would  not  come  later  and  it  was 
not  until  May  8  that  the  engagement  was  definitely  can- 
celled. 

The  Court  is  satisfied  on  the  proofs  that  there  was  a 
Clear  breach  of  contract.  On  the  law  of  the  case  the 
claimant  is  entitled  to  such  damages  as  he  has  actually 
suffered  growing  naturally  and  normally  out  of  said  breach. 
Profits  may  be  considered   as  an   element  of  damage  if 


IN  RE  CONSUL-GENERAL'S  REPORT,  JAN.  29,  1913.       291 

they  flow  naturally  from  the  breach,  are  not  too  remote 
and  can  be  proved  with  sufficient  certainty.' 

Plaintiff  submits  the  booking  sheets  for  the  first  four 
nights,  May  8,  9,  10  and  11,  which  are  verified  on  the 
stand  by  plaintiff's  manager.  This  witness  did  not  per- 
sonally sell  the  tickets,  nor  did  he  pay  out  the  money  to 
ticket  purchasers  in  reimbursement,  and  this  testimony 
cannot  therefore  be  given  the  weight  which  would  properly 
attach  to  first  hand  evidence.  It  is  also  lacking  in  that 
certainty  which  would  compel  the  Court  to  adopt  it  as 
fixing  definitely  the  exact  amounts  received  in  sale  of  tickets 
for  the  four  nights.  But  the  Court  is  well  satisfied  that 
the  booking  sheets  in  evidence  may  be  taken  as  a  guide 
for  determining  certain  profits  which  would  have  accrued 
to  the  plaintiff  but  for  the  breach  of  contract.  It  is  be- 
lieved reasonable  and  fair  to  treat  twenty-five  per  cent 
of  said  bookings  as  having  been  reserved  and  not  paid  for 
and  therefore  as  not  being  sufficiently  established  as  certain 
proceeds  upon  which  profits  could  be  reasonablj^  based. 
From  the  amount  thus  ascertained  there  should  be  deducted 
a  proportionate  amount  of  the  sum  earned  by  the  plaintiff 
company  for  four  nights  of  cinematograph  show.  Judg- 
ment will  be  entered  for  the  plaintifl"  for  seven  hundred 
and  twenty-five  dollars  and  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

In  re  Hankow  Consul-General's  Report  in  the  Estate 
OF  James  Winn,  Deceased. 

[Filed  January  29,  1913.] 

SYLLABUS. 

1.  ADMINISTRATION   OF   ESTATES:    CONSULAR   OFFICERS   in   China,   in 

the  administration  of  estates,  must  act  judicially. 

2.  Id.  :    Id.  :    Merger.     All  powers   conferred  on   consuls   in   China   by 

sees.  1709-11  of  the  Revised  Statutes  to  administer  estates  of 
deceased  Americans,  are  merged  in  the  powers  subsequently 
conferred  when  said  consuls  were  clothed  with  full  probate  ju- 
risdiction. 


'  Page,  Contracts,  III,  p.  2399. 


292  I  EXTRATERRITORIAL  CASES. 

3.  Id.  :    Id.  :    Executive   Acts.     Said   sections   are  still  binding  upon 

consuls  so  far  as  requiring  executive  acts  not  in  conflict  with 
the  exercise  of  probate  jurisdiction. 

4.  Id.  :  The  Supervisory  Control  over  the  discharge  by  consular  of- 

ficers of  duties  relating  to  the  estates  of  decedents  in  China 
required  by  sec.  2  of  the  Act  of  June  30,  1906,  must  be  exercised 
and  such  officers  must  be  guided  by  the  requirements  of  that 
section. 

Thayer,  J.: 

The  Consul-General  at  Hankow,  China,  has  submitted  a 
full  report  to  this  Court  of  the  administration  of  the  above 
entitled  estate,  the  assets  of  which  are  less  than  five  hundred 
dollars,  and  has  requested  the  instructions  and  approval 
of  this  Court.  His  action  is  doubtless  intended  to  be  a 
compliance  with  the  provisions  of  section  2  of  the  Act 
of  June  30,  1906,  which  relate  to  the  supervisory  control 
to  be  exercised  by  this  Court  "over  the  discharge  by  Consuls 
and  Vice-Consuls  of  the  duties  prescribed  by  the  laws  of 
the  United  States  relating  to  the  estates  of  decedents  in 
China." 

Certain  admfiinistrative  powers  and  duties  relative  to 
estates  of  American  citizens  dying  in  foreign  countries 
are  charged  upon  consular  officers  by  certain  general  pro- 
visions '  which  contain  no  exception  of  those  who  may  be 
located  in  countries  where  the  United  States  exercises  ex- 
traterritorial jurisdiction.  They  constitute  a  mixture  of 
executive  and  judicial  duties  and  were  obviously  intended 
to  provide  for  the  conservation  of  the  estates  of  decedent 
American  citizens,  which  otherwise  had  no  protection  except 
that  afforded  by  foreign  law. 

The  later  laws  -  conferring  judicial  powers  on  consular 
officers  in  China  contain  no  specific  provisions  of  repeal  or 
amendment  of  these  earlier  statutes.  That  probate 
jurisdiction  was  conferred  on  consular  officers  in  China 
has  been  decided  on  full  hearing  ^  and  may  therefore  be 
taken  as  settled  law. 


^  U.  S.  Rev.  stats.,  sees.  1709-1711. 

'  Act  of  Congress  of  August  11,  1848,  9  U.  S.  Stats,  at  Large,  Sess. 
I,  Ch.  150;  Act  of  June  22,  1860,  12  U.  S  Stats,  at  Large,  Sess.  I, 
Ch.  179,  p.  72;  Rev.  Stats.,  sees.  4083  et  seq. 

=•  In  re  Roberts  Will,  U.  S.  Court  for  China,  May  15,  1907. 


IN  RE  CONSUL-GENERAL'S  REPORT,  JAN.  29,  1913.       293 

Some  confusion  has  arisen  in  construing  these  several 
statutes  since  it  has  been  suggested  that  in  the  administra- 
tion of  the  estates  of  deceased  Americans  in  China,  consular 
officers  may  possess  alternative  powers,  either  to  dispose  of 
them  administratively  as  executive  officers,  or  to  treat  them 
judicially  as  officers  possessing  full  probate  jurisdiction. 

It  does  not  occur  to  us  that  there  should  be  any  serious 
difficulty  in  harmonizing  these  two  enactments. 

1.  As  to  the  earlier  laws  there  must  be  a  differentiation 
of  the  purely  administrative  duties  and  the  authority  to 
dispose  of  the  decedent's  property,  pay  his  debts  and 
remit  balances  to  the  Treasury  of  the  United  States.  The 
latter  duties  are  at  least  semi- judicial  in  character  and  cover 
functions  which  are  embraced  in  probate  jurisdiction  ex- 
ercised by  competent  courts. 

2.  Consular  officers  in  China  having  been  given  full  pro- 
bate jurisdiction,  such  powers  as  were  previously  exercised 
by  them  under  sections  1709-1711  as  partake  of  judicial 
character,  must  be  assumed  to  have  been  merged  in  the 
probate  jurisdiction  conferred  by  the  later  laws,  while  the 
purely  administrative  duties  therein  charged  upon  them 
may  still  be  exercised. 

3.  It  must  be  apparent  that  the  granting  of  full  probate 
jurisdiction  is  a  material  enlargement  of  the  powers 
previously  granted  on  the  same  subject  matters. 

Prior  to  the  passage  of  acts  conferring  judicial  powers 
in  extraterritorial  jurisdictions  consuls  in  China  undoubt- 
edly enjoyed  the  administrative  powers  relating  to  estates 
of  deceased  Americans  conferred  by  the  provisions  first 
above  cited. 

It  is  material  to  observe  that  the  administrative  powers 
first  conferred,  beginning  as  early  as  1792,  were  the  only 
powers  that  could  be  legitimately  exercised  by  consuls  in 
such  matters,  since  they  were  exercised  in  foreign  territory 
which  could  not  be  the  forum  for  American  courts. 

It  is  a  familiar  rule  of  construction  of  statutes  that 

"A  new  statute  which  affirmatively  grants  a  larger  jurisdiction  or 
power,  or  right,  repeals  any  prior  statute  by  which  a  power,  juris- 
diction or  right  less  ample  or  absolute,  has  been  granted."* 


*  Sutherland,  Statutory  Construction,  145. 


294  ^   EXTRATERRITORIAL   CASES. 

It  is  clear  that  the  giving  of  full  judicial  powers  in 
probate  matters  to  consuls  in  extraterritorial  jurisdictions 
materially  enlarged  the  powers  previously  enjoyed.  In 
fact  it  gave  them  an  entirely  new  character.  For  purpose 
of  administration  of  estates  of  deceased  Americans  they 
became  judicial  officers. 

The  acts  codified  in  sections  4083  to  4130,  inclusive, 
clothed  them  with  full  judicial  powers  relative  to  probate 
matters,  similar  and  analogous  to  those  exercised  by  probate 
courts  in  home  jurisdictions. 

4.  The  creation  of  cou  ts  and  the  definition  of  laws  and 
procedure  applicable  in  extraterritorial  jurisdictions  were 
intended  by  Congress  to  supply  a  regular  system  of  jurispru- 
dence demanded  by  the  treaties  which  allowed  the  exercise 
of  such  jurisdiction.' 

Such  system  of  jurisprudence  having  been  cieated  and 
consular  officers  having  received  judicial  powers  to  deal 
fully  with  probate  matters,  the  exercise  of  any  adminis- 
trative powers  theretofore  given,  in  conflict  therewith,  be- 
came unnecessary,  since  the  same  officers  possessed  full 
judicial  powers  and  could  deal  judicially  with  every  ques- 
tion which  could  arise  in  any  such  matter. 

5.  The  continued  exercise  of  the  lesser  powers  would  be 
fatally  repugnant  to  the  judicial  authority  possessed  by 
them,  and  would  obviously  tend  to  introduce  confusion  and 
uncertainty  in  their  administration  of  estates.  In  partic- 
ular causes  the  question  as  to  whether  the  estate  should 
be  handled  administratively  or  judicially  would  have  to 
be  determined  and  it  is  impossible  to  discover  any  reason 
which  could  justify  the  lodging  of  such  power  in  the  hands 
of  any  office  •.  Possessing  full  power  to  deal  with  the 
matter  judicially,  what  reason  can  be  assigned  why  he 
should  not  exercise  those  powers  fully  in  the  protection  of 
every  estate  and  leave  nothing  to  irregular  procedure? 

In  fact  the  whole  purpose  of  Congress  in  creating  extra- 
territorial jurisdiction  was  to  furnish  to  American  citizens 
who  lived  therein  the  same  remedies  and  the  same  regularity 
of  procedu"  e  which  they  could  invoke  in  their  home  juris- 
diction. 


Rev.  stats.,  sec.  4117. 


IN  RE  CONSUL-GENERAL'S  REPORT,  JAN.  2  9,  1913.       295 

The  earlier  laws  were  obviously  intended  to  clothe  con- 
sular officials  with  such  powers  as  were  permissible  within 
foreign  countries  to  enable  them  to  assist  in  the  conserva- 
tion of  estates  of  our  citizens  who  might  die  while  within 
those  countries. 

The  treaties  with  China  and  some  other  countries  made 
it  possible  to  create  within  their  boundaries  courts  of  the 
United  States  which  were  empowered  to  adjudicate  all  ques- 
tions under  law  and  procedure  substantially  the  same  as  in 
our  own  country.  Such  courts  Congress  has  created.  The 
body  of  law  and  the  procedure  has  been  provided.  In 
furtherance  of  this  purpose  a  higher  court  of  the  United 
States  has  been  created  and  provisions  made  for  review  of 
final  decisions  in  the  Court  of  Appeals.  Everything  points 
to  the  clear  intent  of  Congress  to  establish  legular  judicial 
proceedings  to  make  it  possible  to  supply  protection  to  life 
and  property  of  American  citizens  in  China. 

The  single  fact  that  the  later  laws  contain  no  specific 
words  of  amendment  or  repeal  of  the  earlier  laws  relating  to 
general  administrative  duties  of  consuls  in  such  matters 
in  other  foreign  countries,  has  little  significance.  The  other 
considerations  named  sufficiently  disclose  the  intent  of 
Congress. 

It  is  clear  that,  as  probate  jurisdiction  has  been  conferred, 
all  estates  in  China  must  be  administered  judicially.  Such 
being  the  case  the  clear  and  unambiguous  terms  of  section 
2  of  the  Act  of  June  30,  1906,  must  be  complied  with.  The 
supervisory  control  over  the  discharge  by  consuls  and  vice- 
consuls  of  duties  relating  to  the  estates  of  decedents  in 
China  required  by  that  act,  must  be  exercised. 

The  Court  is  advised  that  this  section  has  not  heretofore 
been  uniformly  complied  with.  If  that  is  true  it  has  no 
doubt  resulted  from  the  natural  confusion  arising  from  the 
lack  of  clear  interpretation  of  these  statutes. 

From  a  careful  examination  of  sections  1709-1711  of  the 
Revised  Statutes,  it  is  apparent  that  consuls  may  utilize 
the  means  therein  described  in  the  exercise  of  their  probate 
jurisdiction,  that  is  to  say: 

1.  In  the  case  of  an  estate  where  no  legal  representative  appears 
he  may  take  possession  of  tlie  personal  estate. 


296  I  EXTRATERRITORIAL  CASES. 

2    He  may  inventory  them  with  such  assistance  as  he  may  choose. 

3.  He  may,  thru  regular  judicial  proceedings,  administer  the  estate, 
ordinarily  thru  administrators  or  executors. 

4.  If  there  shall  be  a  residue  left  and  no  heirs  are  known  to  the 
court  to  whom  the  same  may  be  lawfully  distributed,  subject  to  the 
supervisory  control  of  the  United  States  Court  for  China,  said  residue 
may  be  remitted  to  the  Treasury  of  the  United  States. 

5.  Compliance  with  the  provisions  of  section  1710  in  no  way  con- 
flicts with  the  exercise  of  full  probate  jurisdiction.  They  provide  only 
for  executive  reports  to  the   Secretary  of  State. 

6.  Section  1711  must  be  construed  by  consular  officers  in  China 
as  a  guide  in  the  discharge  of  their  probate  jurisdiction.  The  pro- 
visions therein  contained  were  obviously  intended  for  the  control  of 
consuls  in  non-extraterritorial  countries  but  are  not  inconsistent 
with  the  duties  and  powers  ordinarily  charged  upon  probate  judges. 

In  the  case  under  consideration  the  consular  officer  has 
construed  the  statutes  correctly.  In  his  administration  of 
the  particular  estate  there  have  been  some  slight  irregular- 
ities which  were  either  justified  by  the  circumstances  of 
the  case  or  were  reasonably  unavoidable. 

His  action  is  approved  in  detail. 

An  opinion,  said  to  have  been  prepared  by  an  assistant  solicitor 
appeared  under  date  of  May  13,  1913,  some  four  months  after  this 
decision,  and  contained  the  following  passage: 

"In  Minor  on  Conflict  of  Laws  (page  230),  it  is  stated  that  the 
primary  administrator  (in  a  case  where  the  decedent  left  personalty 
in  several  states  of  the  United  States)  is  the  one  appointed  by  the 
courts  of   the  decedent's   domidl. 

It  is  concluded  in  view  of  the  foregoing  that  the  question  of 
whether  a  consular  officer  in  China  should  proceed  in  the  matter  of 
administering  the  estate  of  a  deceased  national  in  the  officer's  judicial 
capacity  or  in  accordance  with  the  provisions  of  section  1709  R.  S., 
should  be  determined  with  reference  to  the  domicil  of  the  decedent 
at  d«ath.  If  such  domicil  were  in  China,  and  if  the  estate  were  less 
than  $500  in  amount,  it  would  apparently  be  the  duty  of  the  officer 
to  have  the  estate  administered  in  his  court  and  to  make  reports 
thereon  to  the  Department  as  provided  by  said  section  650  of  the 
Consular  Regulations.  Where,  however,  the  decedent  had  not  ac- 
quired domicil  in  China,  and  regardless  of  the  amount  of  the  estate, 
it  would  seem  that  the  consul  should  proceed  under  the  provisions 
of  section  1709  R.  S.,  making  his  reports  to  the  court  and  securing 
the  court's  sanction  to  various  matters  of  administration  as  required 
by  section  2  of  the  Act  of  June  30,  1906." 

If  accepted  and  followed,  this  opinion  would  have  deprived  Amer- 
ican Courts  in  China  of  a  considerable  part  of  the  jurisdiction  which 
they  had  continuously  exercised  for  two  generations.  Fortunately 
it  was   afterward  virtually  withdrawn. 

The  one  authority  cited  for  the  conclusion  stated  is  Minor,  Conflict 
of  Laws,  230,  from  which  a  part,  only,  of  the  following  sentence  is 
taken : 


DIEDERICHSEN  &  CO.  V.  CONNELL  BROS.,  JUNE  9,  1913.  297 

"The  primary  administrator,  in  such  case,  is  the  one  appointed  by 
the  courts  of  the  decedent's  domicil,  and  to  him  will  ultimately  be 
remitted  all  the  funds  of  the  decedent  in  other  States,  after  ad- 
ministration there  has  been  accomplished  and  the  creditors  there  have 
been  satisfied." 

It  will  be  seen  that  even  this  sentence  recognizes  the  right  of  ad- 
ministration "in  other  States"  than  that  of  decedent's  domicil,  and  on 
the  page  immediately  preceding  the  above  quotation  is  the  following: 

"If  the  personalty  of  the  decedent  is  situated  in  several  States,  he 
(the  administrator)  must  be  reappointed  or  a  new  administrator 
must  be  nominated  in  each  State  before  the  property  there  situated 
can  be  administered." 

It  will  be  observed  that  when  Mr.  Minor's  full  expression  is  before 
us  he  is  very  far  from  saying  that  there  can  be  no  administration 
except  in  the  jurisdiction  of  the  decedent's  domicil. 

Clearly  all  that  he  means  to  say  is  that  if  letters  testamentary  or 
of  administration  are  taken  out  at  such  domicil,  the  administration 
there  is  primary  and  that  in  the  other  jurisdictions  ancillary.  This 
in  fact  is  the  well  settled  law.  Judge  Woerner,  in  his  authoritative 
work  on  the  "American  Law  of  Administration"  (2nd  edition,  p. 
204),  says: 

"The  rule  in  America  is  universal,  that  administration  may  be 
granted  in  any  State  or  Territory  where  unadministered  personal 
property  of  a  deceased  person  is  found,  or  real  property  subject 
to  the  claim  of  any  creditor  of  the  deceased;  and  that  probate  of  the 
will  of  any  deceased  person  may  be  granted  in  any  State  tvhere  he 
leaves  personal  or  real  property.^' 

In  another  work  of  authority   (18  Cyc.  69)    it  is  stated: 

"Locality  of  personal  assets  belonging  to  the  estate  of  a  decedent 
confers  a  local  probate  jurisdiction,  regardless  of  the  consideration 
of  last  domicil  or  residence,  altho  ancillary  as  matter  of  comity. 
Such  jurisdiction  being  founded  in  universal  convenience,  the  courts 
of  one  country  or  state  do  not  feel  compelled  to  wait  until  those  of 
another  have  acted,  nor  remit  their  own  domestic  claimants  to  foreign 
jurisdictions." 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

h.  diederichsen  &  company  v.  connell  brothers 
Company. 

[Civil   Action   No.   118;   filed  June   9,   1913.] 

SYLLABUS. 

1.  CONTRACTS:  TIME  OP  PERFORMANCE.     "In  the  contracts  of  merchants 

time  is  of  the  essence."     (115  U.  S    188). 

2.  Id.  :  Id.     A  contract  for  shipment  "during  the  month  of  February 

1912"  is  broken  if  the  ship  does  not  sail  till  March. 


298  I   EXTRATERRITORIAL   CASES. 

3.  Id. :  Id.:  Excuse:  Evidence  reviewed  and  found  insufficient  to  show 

diliarence  excusing-  the  delay. 

4.  Id.  :   Interpretation.     The  rule  of  ejusdeni  generis  explained  and 

applied. 

Messrs.  Jernigan  &  Fessenden,  for  plaintiff. 
Messrs.  Fleming  &  Davies,  for  defendant. 


Thayer,  J.: 

This  action  is  brought  to  recover  damages  alleged  to  have 
been  suffered  by  reason  of  a  breach  of  the  following  con- 
tract : 

"Chefoo,   Oct.   17th,   1911. 

CONTRACT. 

This  certifies  that  we  have  this  day  ordered  for  Messrs.  H.  Died- 
erichsen  &  Co.,  Chefoo,  the  following  goods  to  be  shipped  by  steamer 
sailing  from  either  of  the  following  ports:  Seattle,  Tacoma,  Portland, 
San   Francisco,  Vancouver,   during  the  month   of   February,    1912. 

Terms  confirmed  bankers'  letter  of  credit  three  days'  sight  draft 
with    interest,    documents    delivered    against   payment. 

The  goods  to  be  for  the  account  of  the  buyers,  who  are  to  bear  all 
risk  of  damage,  shortage,  leakage  and  breakage  also  all  risk  of  fire. 

All  agreements  herein  contained  or  implied  are  contingent  upon 
strikes,  accidents  and  other  delays  unavoidable  or  beyond  our  control. 

80,000  (eighty  thousand)  bags  of  American  flour  (standard  491b.) 
quality  equal  to  what  is  known  under  the  brand  of  "Morjon"  at  the 
pi'ice  of  G.  $4.1.5  (G.  $  four  and  fifteen  cents)  per  four  bags  c.i.f. 
Chefoo. 

Insurance  risk  (with  average,  free  of  3  (three)  per  cent,  if  not 
better  available)  to  cover  sound  delivery >  to  be  covered  by  shippers 
in  the  name  of  consignees. 

CoNNELL  Brothers  Company. 

p.p.  A.  BOUGHTAN." 

The  steamer  upon  which  shipment  was  made  did  not  sail 
in  the  month  of  February.  It  sailed  on  March  8,  1912,  from 
Tacoma.  Defendant  contends  that  circumstances  were  such 
that  failure  on  its  part  to  make  shipment  during  the  month 
of  February  comes  within  the  provisions  of  the  exemption 
clause  in  the  contract,  and  issue  has  been  made  on  that  ques- 
tion, evidence  taken  and,  on  stipulation  of  counsel,  that 
question  has  been  argued  by  counsel  and  submitted  to  the 
Court  as  a  preliminary  question,  it  being  agreed  that  if 


DIEDERICHSEN  &  CO.  V.  CONNELL  BROS.,  JUNE  9,  1913.  299 

said  question  is  decided  adversely  to  the  defendants,  further 
proofs  may  be  taken  on  the  question  of  damages. 

On  the  proofs  it  is  sufficiently  established  that  the  de- 
fendant company  took  the  order  in  good  faith  and  made 
efforts  to  ship  in  the  month  of  February.  In  fact  there  is 
no  evidence  that  defendants  could  have  benefited  in  any 
way  by  a  delay  of  shipment.  The  question  as  to  whether 
or  not  they  used  due  diligence  in  arranging  for  shipment 
within  the  time  prescribed  by  the  terms  of  the  contract, 
will  be  considered  later. 

In  the  latter  part  of  December,  thru  regular  shipping 
channels,  defendant  arranged  to  charter  the  ship  Indien 
which  was  then  in  South  Atlantic  waters,  was  reported 
to  be  due  in  San  Francisco  on  January  25,  1912, 
and,  it  was  claimed  by  agents,  would  be  in  Tacoma  in  early 
February.  While  the  proofs  on  these  points  are  not  in  the 
most  conclusive  form,  the  negotiations  appear  to  have  been 
conducted  in  the  usual  way  and  the  information  received 
by  defendant  seems  to  have  been  such  as  would  ordinarily 
be  accepted  by  commercial  agencies  as  reliable. 

It  seems  obvious  to  the  Court  that  in  such  matters  absolute 
certainty  could  rarely  be  commanded.  However,  the  Indien 
was  unable  to  arrive  in  time,  whether  because  of  any  ac- 
cident to  her  machinery  is  not  shown.  Some  time  in  Jan- 
uary the  defendant  was  notified  that  she  could  not  arrive 
in  time  for  February  shipment  and  immediate  effort  was 
made  to  secure  another  ship  with  the  result  that  the  Har- 
pagus  was  chartered.  It  was  expected  to  arrive  in  Puget 
Sound  by  the  middle  of  February,  and  did  so  arrive  on  that 
date  at  the  government  Navy  Yard  at  Bremmerton  loaded 
with  co?.l.  Some  delay  occurred  in  her  unloading  there  and 
she  did  not  arrive  at  Tacoma,  the  point  of  shipment, 
until  February  29.  The  loading  of  the  flour  began  on  March 
2,  was  concluded  on  March  3  and  the  ship  sailed  on  March  8, 
1912.  It  is  thus  seen  that  there  was  a  breach  of  the  contract 
in  that  respect  by  the  defendant,  unless  it  can  show  that 
the  delay  in  shipment  was  due  to  some  one  or  more  of  the 
excepted  causes.     It  is  well  settled  that : 

"in  the  contracts  of  merchants  time  is  of  the  essence.  The  time  of 
shipment  is  the  usual  and  convenient  means  of  fixing  the  probable 


300  I  EXTRATERRITORIAL  CASES. 

time  of  arrival,  with  a  view  to  providing  funds  to  pay  for  the  goods, 
cr  of  fulfilling  contracts   with  third   persons." ' 

The  provision  in  the  contract  that  the  shipment  should  be 
made  in  February  is  as  obligatory  as  are  the  quantity  and 
brand  of  flour  to  be  shipped.  As  the  defendant  is  bound  by 
that  material  provision  and  seeks  to  avoid  its  binding  effect, 
the  burden  of  proof  is  on  it  to  show  that  failure  to  ship  in 
that  month  was  due  to  some  of  the  excepted  causes  recited 
in  the  contract.  As  a  preliminary  proposition  it  must  be 
held  that  defendants  must  show  that  they  used  due  diligence 
in  providing  for  this  shipment  in  accordance  with  the  pro- 
visions of  the  contract;  otherwise  no  resort  can  be  had  to 
the  excepting  clause. 

The  question  of  what  constitutes  due  diligence  must  de- 
pend on  the  facts  and  circumstances  of  each  case.  In  that 
at  bar  the  shipment  was  required  to  be  made  from  one  of  five 
American  Pacific  coast  ports  and  was  for  transportation 
across  the  Pacific  Ocean  to  one  of  the  minor  ports  of  China. 
Chefoo,  the  port  of  delivery,  has  no  direct  steamer  connexion 
with  any  of  the  five  ports  named.  Shipment  by  any  of  the 
regular  trans-Pacific  steamship  lines  would  require  trans- 
shipment and  not  only,  presumably,  increase  the  cost  of 
transportation  to  the  shipper  but  result  in  loss  of  time  to 
the  consignee.  The  reasonable  and  customary  course  in 
such  cases  would  be  to  charter  for  direct  shipment  especially 
where  the  consignment  in  tonnage  was  as  large  as  in  this 
case. 

The  first  step  taken  by  the  defendants  was  to  negotiate 
for  the  charter  of  the  Indien.  The  proofs  fail  to  show  that 
negotiations  were  begun  with  reference  to  securing  any 
ship  until  the  early  part  of  December.  The  agreement  for 
charter  was  made  on  December  29.  At  that  time  the  Indien 
was  supposed  to  be  at  or  near  Buenos  Aires.  The  agents 
reported  by  letter  of  December  30: 

"The  steamer  is  expected  to  have  left  Buenos  Aires  to-day  for  San 
Francisco  via  Coronal  and  eventually  a  nitrate  port  and  we  expect 
her  discharge  at  San   Francisco   about  February   15-20." 

If  the  time  consumed  in  sailing  from  San  Francisco  to 
Tacoma  is  added  to  February  20,  it  is  obvious  that  the 

'  Norrington  v.  Wright,  115  U.  S.  188,  29  L.  ed.  366. 


DIEDERICHSEN  &  CO.  V.  CONNELL  BROS.,  JUNE  9,  1913.  301 

margin  for  loading  and  sailing  in  the  month  of  February  is 
very  narrow.  It  is  clear  we  think  that  there  was  not  such 
a  factor  of  safety  as  would  have  been  insisted  upon  by  a 
prudent  business  man  who  stood  to  commit  a  serious  breach 
of  contract  in  the  event  of  the  failure  of  the  ship  to  reach 
Tacoma  and  load  and  sail  during  that  month. 

Again  the  lay  days  under  the  charter-party  began  on 
February  10  and  ended  on  March  10.  In  other  words  the 
Indien  under  the  charter  was  not  bound  to  complete  loading 
at  Tacoma  until  March  10. 

Upon  this  state  of  facts  it  cannot  be  held  that  in  the  agree- 
ment for  charter  of  the  Indien  the  defendant  used  that  dili- 
gence to  which  it  was  reasonably  bound  by  the  provisions  of 
the  contract.  Nor  does  the  proof  show  that  the  hidien 
suffered  any  accident.  The  utmost  alleged  is  that  she  was 
detained  in  Buenos  Aires  for  repairs. 

The  defendants  learned  about  January  25  that  the  Indien 
could  not  load  and  sail  in  February,  and  immediately 
arranged  for  shipment  of  the  flour  by  the  Harpagus.  It  is 
in  proof  that  this  ship  was  the  only  tonnage  for  February 
that  could  be  secured ;  that  defendants  were  assured  that  she 
would  be  at  Tacoma  ready  for  loading  not  later  than  Feb- 
ruary 25 ;  that  she  actually  arrived  at  the  U.  S.  Navy  Yard 
at  Bremmerton,  near  Seattle,  on  February  15 ;  that  she  was 
loaded  with  coal  for  the  U.  S.  Government,  but  was  unable  to 
discharge  her  load  and  reach  Tacoma  until  February  29. 
The  proofs  do  not  show  affirmatively  that  the  Harpagus  was 
unduly  delayed  in  discharging  her  coal  at  the  Naval  Station, 
but  it  is  fair  to  assume  that  the  consumption  of  nearly  two 
weeks  in  that  work  was  an  unreasonable  time.  It  is  shown 
that  defendant  and  agents  were  active  in  their  efforts  to 
secure  her  presence  at  Tacoma  not  later  than  the  expected 
date,  February  25.  It  is  shown  that  the  entire  quantity  of 
flour  for  said  consignment  was  on  the  dock  ready  for  load- 
ing on  February  21  in  anticipation  of  the  arrival  of  the 
Harpagus. 

The  Court  finds  that  defendant  exercised  due  diligence 
in  respect  to  the  chartering  of  the  Harpagus.  The  de- 
fendant's imprudent  reliance  on  the  uncertain  conditions 
of  the  Indien  charter  had  brought  it  into  the  unfortunate 


302  I   EXTRATERRITORIAL   CASES. 

position  of  being  compelled  to  rely  on  the  Harpagus  alone. 
It  is  hardly  necessary  for  the  Court  to  make  any  formal 
finding  that  the  movements  of  the  chartered  ships,  before 
reporting  under  their  charter,  are  not  subject  to  the  physical 
control  of  the  shippers  since  that  is  an  obvious  fact. 

Can  the  defendants  be  excused  for  this  breach  of  contract 
for  any  of  the  causes  recited  in  the  excepted  clause?  It  is 
not  alleged  that  there  were  any  strikes  which  interfered 
with  the  sailing.  Nor  does  the  proof  show  that  there  were 
any  accidents  which  prevented  the  sailing.  If  the  defend- 
ants are  to  be  excused  it  must  be  by  reason  of  "other  delays 
unavoidable  or  beyond  their  control."  The  words  "strikes" 
and  "accidents"  are  definite  and  specific.  The  words  "or 
other  delays  unavoidable  or  beyond  our  control"  are  general 
and  comprehensive  and  require  construction  in  the  light  of 
the  facts  of  the  paiticulair  case.  Inasmuch  as  they  are 
introduced  by  the  defendant  and  intended  for  its  benefit 
they  must  be  construed  strictly  and  favorably  to  the  other 
party.- 

On  the  facts  found  in  this  case  no  consideration  can  be 
shown  to  the  defendants  by  reason  of  the  charter  of  the 
Indien.  It  is  apparent  that  the  proximate  cause  of  the 
position  in  which  the  defendant  found  itself  near  the  end 
of  January,  1912,  was  due  to  a  lack  of  exercise  of  due  dili- 
gence in  providing  for  the  certain  shipment  in  February  as 
stipulated  in  the  contract.  Failure  in  this  respect  imposed 
upon  it  a  dangerous  risk  as  was  demonstrated  by  subse- 
quent events.  With  this  state  of  facts  the  vital  question  is 
raised  whether  the  diligence  shown  in  securing  the  Harpagus 
put  the  defendants  in  a  position  such  as  would  enable  them 
to  claim  benefit  because  the  delay  of  the  Harpagus  was 
beyond  their  control. 

We  think  that  this  question  must  be  answered  in  the 
negative.  From  date  of  contract  to  last  date  for  shipment 
defendants  had  more  than  four  months,  which  should 
certainly  be  regarded  as  ample  time  within  which  to  make 
all  provisions  therefor. 


=  Orient  Mut.  Ins.  Co.  v.  Wright,  1  Wall.  456,  17  L.  ed.  505;  Gar- 
rison V.  U.  S.,  7  Wall.  688,  19  L.  ed.  277;  Noonan  v.  Bradley,  9  Wall. 
394,  19  L.  ed.  757. 


DIEDERICHSEN  &  CO.  V.  CONNELL  BROS.,  JUNE  9,  1913.  303 

It  cannot  be  allowed  to  fritter  away  more  than  half  of 
that  time  in  ineffective  negotiations  and  yet  plead  success- 
fully that  delays  occurring  subsequently  were  unavoidable 
and  beyond  its  control. 

For  the  construction  of  the  excepting  clause  of  the  con- 
tract the  plaintiff  has  invoked  the  doctrine  of  ejusdem 
generis.  This  doctrine,  or  rule  of  construction,  may  be 
defined  as  follows: 

"When  the  particular  dangers  or  risks  against  which  a  party  has 
specifically  guarded  himself  in  a  contract  are  followed  by  more  gen- 
eral and  comjprehensive  words  of  exception,  the  latter  are  to  be  con- 
strued to  embrace  only  occurrences  ejusdevi  generis  with  those 
previously  enumerated,  unless  there  is  a  clear  intent  to  the  contrary." 

The  particular  risks  specified  in  the  excepting  clause  are 
"strikes"  and  "accidents."  The  general  words  following 
are  "other  delays  unavoidable  or  beyond  our  control."  Un- 
der the  rule  invoked  the  exemption  provided  for  would 
apply  only  to  accidents  and  strikes.  Counsel  for  the  plain- 
tiff has  cited  numerous  English  cases  in  which  this  doctrine 
has  been  recognized  and  applied.^ 

It  is  also  a  recognized  American  doctrine.* 

"If  general  words  in  a  statute  follow  an  enumeration  of  particular 
cases  they  are  held  to  only  cover  cases  of  the  same  kind  as  those  ex- 
pressly mentioned."  ^ 

There  are  numerous  other  American  cases  which  while 
they  do  not  specifically  cite  this  doctrine  as  the  basis  of 
decision  recognize  the  principle  upon  which  it  is  founded 
— viz.,  that  general  words  of  exception  in  a  charter  party 
or  bill  of  lading  must  be  construed  with  great  strictness.^ 

It  is  but  fair  to  say  that  the  rule  does  not  seem  to  have 
had  as  wide  a  recognition  in  American  Courts  as  in  England. 
But  this  Court  is  satisfied  that  it  is  founded  on  sound  reason 
and  should  be  accepted  and  applied. 

="  Richardsons  v.  M.  Samuel  &  Co.,  L.R.  1  Queen's  Bench  [1898]  261; 
The  Rookwood,  10  L.T.R.  314;  The  Village  Belle,  30  L.T.  232;  Grant 
V.  Todd,  L.R.,  9  Appeal  Cases,  470;  Fenwick  v.  Schmalz,  L.R.  3 
C.P.,   313;   Carver's   Carriage  by   Sea,  sec.  258-a. 

*  Hutchinson,  Carriers,  sec.  465. 

'  U.  S.  v.  Irwin,  26  Fed.  Cas.  546. 

"Sorenson  v.  Keyser,  52  Fed.  163;  Texas  etc.  R.  Co.  v.  Reis,  183 
U.  S.  621,  46  L.  ed.  358;  The  India,  49  Fed.  Rep.  76. 


304  I  EXTRATERRITORIAL  CASES. 

On  the  preliminary  question  "Does  the  failure  of  the 
defendants  to  make  shipment  during  the  month  of  Feb- 
ruary, upon  the  state  of  facts  shown  in  this  record,  come 
within  the  provision  of  the  exemption  clause  in  the  con- 
tract?" the  Court  holds  that  it  does  not. 

Subsequently  the  following  order  was  made  on  a  motion  for 
rehearing: 

The  motion  in  this  case  is  made  upon  the  ground  of  newly  dis- 
covered evidence.  The  evidence  offered  tends  to  show  that  the  de- 
fendant company,  either  thru  itself  or  its  duly  authorized  agents, 
exercised  due  diligence  in  attempting  to  secure  a  charter  party  to 
ship  the  goods  within  the  time  prescribed  by  the  contract.  Affidavits 
containing  statements  of  this  character  are  offered  from  four  wit- 
nesses and  are  covered  by  an  affidavit  of  the  Vice  President  of  the 
defendant  company,  who  is  also  the  General  Manager  of  the  defend- 
ant company,  who  is  also  the  General  Manager  of  the  defendant's 
business  in  the  Orient,  stating  that  affiant  resides  in  Shanghai,  has 
not  been  in  Seattle  where  the  shipment  was  to  take  place  and  whei'e 
arrangements  therefor  were  made,  since  the  date  of  said  contract, 
and  had  no  opportunity  to  see  or  converse  with  any  of  the  persons  or 
witnesses  familiar  with  the  facts  of  this  case  and  that  the  alleged 
newly  discovered  evidence  came  to  the  knowledge  of  the  affiant 
after  the  decision. 

It  seems  clear  to  the  Court  that  the  motion  submitted  does  not  in 
form  and  substance  conform  to  the  familiar  rules  which  govern  mo- 
tions for  a  new  trial. 

It  is  not  sufficient  for  one  of  the  defendants  or  one  of  the  repre- 
sentatives of  the  defendant  to  state  that  he  has  not  seen  any  of 
the  present  affiants  or  had  opportunity  to  converse  with  them  since 
the  making  of  the  contract  in  controversy.  It  is  not  shown  that  by 
the  exercise  of  reasonable  diligence  evidence  of  the  parties  named 
and  of  the  character  tendered  could  not  have  been  obtained  and  sub- 
mitted at  the  regular  hearing.  The  granting  of  a  new  trial  for 
newly  discovered  evidence  is  within  the  Court's  discretion  but  where 
the  record  does  not  disclose  affirmatively  that  due  diligence  has  been 
exercised  it  is  an  abuse  of  discretion  to  grant  a  new  trial. 

In  this  case  by  agreement  of  counsel  a  preliminary  issue  was  agreed 
upon,  upon  which  evidence  was  taken  and  argument  submitted  and 
upon  which  judgment  was  rendered  and  respecting  which  rehearing 
is  now  sought.  The  said  judgment  was  not  a  final  judgment  in  said 
cause  and  for  this  reason  the  Court  would  be  more  inclined  to  grant 
a  motion  of  this  character  reasonably  supported  than  it  would  be  if 
the  motion  related  to  a  rehearing  upon  the  whole  case  but  any  liberal 
disposition  of  the  Court  in  that  direction  is  not  only  met  by  objection 
to  the  form  of  the  motion  but  by  the  fact  that  in  the  opinion  announc- 


UNITED  STATES  V.  GRIMES,  MAR.  9,  1914.       305 

Ing  the  judgment  referred  to  the  Court  sustained  and  applied  the 
doctrine  of  ejusdem  generis,  under  which  doctrine,  if  correctly  applied 
to  this  case,  the  alleged  newly  discovered  evidence  is  immaterial 
to  this  issue.  Under  these  circumstances  the  motion  for  rehearing 
must  be  denied. 

The  judgment  was  affirmed  by  the  Court  of  Appeals.     See  post, 
p.  333. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Peter  A.  Grimes. 

[Criminal  cause  No.  87;  filed  March  9,  1914.] 

SYLLABUS 
(By  the  Court) 

1.  FORGERY:    Acts  of  Congress  penalizing,  applied. 

2.  Id.  :  The  Minimum  Penalty  will  not  ordinarily  be  imposed  for  a 

second  offense  of  the  same  character. 

William  S.  Fleming,  Esq.,  Special  U.  S.  Atty.,  for  the 
prosecution. 
Stirling  Fessenden,  Esq.,  for  the  defendant. 

LOBINGIER,  J.: 

The  accused  pleads  guilty  to  an  information  charging  him 
with  forgery  of  a  check  for  fifty  dollars,  Mexican  currency. 
This  offense  was  one  at  Common  Law  ^  and  is  also  defined 
and  penalized  by  the  acts  of  Congress  relating  to  the  Dis- 
trict of  Columbia  -  and  Alaska  ^  which  under  the  decisions 
of  the  Court  of  Appeals  *  and  of  this  Court  ^  are  applicable 
here.  There  is  accordingly  no  question  as  to  our  jurisdic- 
tion and  the  procedure  is  settled  by  the  decision  of  the 
Supreme  Court.*'  The  plea  of  guilty,  therefore,  leaves  only 
the  penalty  to  be  considered. 

Counsel  for  the  accused  asks  for  the  minimum  punish- 

'Cyc.  XIX,  1370. 

'31  U.  S.   Stats,  at  Large,  sess.  II,  Ch.  854,  sec.  843. 

•  30  U.  S.  Stats,  at  Large,  sess.  Ill,  Ch.  429,  Tit.  I,  sec.  76. 

*  Biddle  v.  U.  S.,  ante,  p.  120. 

"  U.  S.  V.  Grimsinger,  ante,  p.  284. 
'  In  re  Ross,  ante,  p.  40. 

14008  O.  W. 20 


306  I   EXTRATERRITORIAL  CASES. 

ment  because  his  client  has  pleaded  guilty  and  by  reason 
also  of  the  comparatively  small  amount  realized  from  the 
forged  check.  These  are  considerations  which  would  or- 
dinarily have  weight  and,  in  the  absence  of  countervailing 
circumstances,  might  justify  the  leniency  sought. 

It  appears,  however,  from  a  showing  made  by  counsel  for 
the  government  upon  the  prisoner's  first  appearance  for 
sentence,  and  admitted  by  the  latter,  that  so  late  as  August 
10th  last  he  was  discharged  from  San  Quentin  Prison,  Cal- 
ifornia, after  serving  a  sentence  of  one  year  for  this  iden- 
tical offense  under  the  name  of  John  H.  Rogers.  As  the 
crime  to  which  he  now  pleads  guilty  was,  according  to  the 
information,  committed  on  December  6,  it  will  be  seen  that 
he  was  repeating  his  former  offense  within  four  months 
of  his  discharge.  Moreover  it  even  appears  from  the  re- 
cords of  the  Consular  Court  that  the  accused  has  been  there 
convicted  of,  and  has  already  served  sentences  of  two  and 
four  weeks  respectively  for,  somewhat  similar  offenses  (ob- 
taining money  under  false  pretenses)  the  first  committed 
as  early  as  October  4,  1913,  and  the  second  on  December  9. 
Leaving  out  of  account  the  fact  that  another  information 
charging  forgery  on  December  8  is  pending  against  the 
accused,  and  bj^  agreement  of  both  counsel  has  been  allowed 
to  stand  over  (tho  this  it  seems  may  properly  be  considered 
in  fixing  the  penalty  '),  it  sufficiently  appears  from  the  ad- 
mitted facts  already  reviewed  that  he  is  not  only  no  novice 
in  crime  but  that  a  penalty  such  as  is  now  suggested  has 
little  or  no  deterrent  effect  upon  him. 

Now  the  deterrent  effect  of  punishment  is  the  element 
which  should  be  most  controlling  in  determining  its  duration 
and  severity.  As  expressed  by  the  father  of  modern  pe- 
nology, Beccaria,  "The  end  of  punishment  is  nothing  else 
than  to  prevent  the  repetition  of  crime."  The  present  day 
theory  of  penalties,  in  other  words,  is  preventive  and  not 
vindictive ;  but  a  penalty  which  leaves  so  little  impression 
upon  the  offender  that  he  repeats  the  offense  within  a  few 
weeks  cannot  accurately  be  termed  "preventive." 

'  State  V.  Wise,  32  Oreg.,  280,  Pac,  800. 


UNITED  STATES  V.  GRIMES,  MAR.  9,  1914.  307 

Indeed  the  fact  that  the  accused  is  a  second  offender  at 
all  would  seem  to  deprive  him  of  the  benefits  of  the  minimum 
penalty.  In  the  Codes  of  Civil  Law  countries  *  that  is  an 
aggravating  circumstance  which  automatically  raises  the 
penalty  and  in  Anglo-American  jurisdictions  it  is  an  element 
to  be  considered  in  exercising  the  court's  discretion.  As 
was  well  said  by  Chief  Justice  Clark: 

"Such  matters  ought  justly  and  properly  to  be  considered,  as  well 
as,  on  the  other  hand,  a  defendant's  previous  good  character,  in  light- 
ening the  sentence  to  be  imposed.  In  England  and  some  of  the 
states  of  this  country  there  is  an  Habitual  Criminals  Act,  which  re- 
quires heavier  sentences  for  such  offenders."  '' 

The  minimum  penalty  provided  for  this  offense  by  both 
of  the  codes  above  cited  is  imprisonment  for  one  year  but 
the  maximum  in  the  first  is  twenty  years  and  ten  in  the 
second.  And  while  in  the  view  of  a  former  judge  of  this 
Court  these  periods  are  not  controlling  ^"  we  are  of  the 
opinion,  in  the  light  of  all  the  circumstances,  that  a  term 
of  three  years  would  be  the  least  that  would  serve  to  deter 
the  accused  or  to  afford  a  warning  to  others  of  like  tenden- 
cies. 

It  has  been  suggested  that  the  accused  may  be  suffering 
from  some  form  of  criminal  mania;  but  clearly  this  does 
not  lessen  the  necessity  of  incarceration  tho  it  may  require 
a  special  method  of  treatment  during  the  period  thereof 
and  this  is  meanwhile  recommended  to  the  consideration 
of  the  prison  authorities. 

The  defendant  is  accordingly  sentenced  to  imprisonment 
for  a  term  of  three  years  to  be  served  in  the  prison  for 
American  convicts  in  China  at  Shanghai,  until  provision 
is  made  by  the  government  for  his  transfer  to  some  prison 
elsewhere;  and  it  is  directed  that  during  the  whole  of  said 
term  he  be  employed  at  some  useful  labor.  He  is  further 
adjudged  to  pay  the  costs  of  this  prosecution. 

^E.g.,  Spanish  Penal  Code,  art.  10   (17,  18). 

*  State  V.  Wilson,  121  N.  C,  650,  28  S.  E.  Rep.,  417,  citing  Whart. 
Cr.  PI.  (9th  ed.),  934;  1  McClain,  Cr.  Law,  28;  Moore  v.  Missouri, 
159  U.  S.,  673,  16  Sup.  Ct.,  179. 

^^  U.  S.  V.  Grimsinger,  ante,  p.  285. 


308  I   EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  John  T.  Allen. 

[Criminal  cause  No.  89;  filed  April  18,  1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  EXTRATERRITORIALITY:    OBLIGATIONS:  "IMPROPER  ACT."     In  con- 

sideration of  the  suri'ender  by  China  of  criminal  jurisdiction 
over  Americans  in  the  latter's  territory  the  United  States  gov- 
ernment has  undertaken  to  punish  according  to  its  own  laws 
any  "improper  act"  committed  in  China. 

2.  Id.:  Id.:  Id.:  The  Sale  of  Intoxicating  Liquors  without  a  license 

or  other  authority  is  an  "improper  act  *  *  *  according  to 
the  laws  of  the  United  States." 

3.  Id.:  What  Laws  Extend.     Such  of  the  acts  of  Congress,  regard- 

less of  their  original  application,  as  are  "necessary"  and  "suit- 
able" to  carry  into  effect  such  undertaking,  have  extraterritorial 
force   in   China. 

4.  Id.  :  Criminal  Procedure.     Those  sections  of  the  Act  of  Congress 

of  March  3,  1899  (relating  to  crimes  and  criminal  procedure 
in  Alaska),  which  penalize  and  provide  for  prosecuting  the  un- 
licensed sale  of  intoxicating  liquors  are  "suitable"  for  executing 
our  treaty  obligations  with   China. 

5.  Id.  :  Id.  :  A  Demurrer  which  meets  the  requirements  of  sec.  90  of 

said  act  is  sufficient  in  form. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
Messrs.  Flemmg  &  Davies,  by  Mr.  W.  S.  Fleming,  for  the 
defense. 

LOBINGIER,  /. ; 

The  defendant  demurs  to  an  information  charging  that  he 

"from  or  from  about  May  1,  1913  to  or  to  about  January  15,  1914, 
in  a  building  situate  on  North  Szechuen  Road  Extension  at  said 
Shanghai,  China  and  without  the  boundaries  of  the  foreign  munic- 
ipalities at  said  Shanghai,  said  building  being  known  as  the  Oregon 
Bar  and  being  open  to  the  public,  offered  for  sale,  and  sold,  intox- 
icating liquors  to  the  public  frequenting  said  Oregon  Bar  without 
license  so  to  offer  for  sale  and  to  sell  said  liquors;  against  the  treaties 
between  the  United  States  and  China  and  against  the  laws  of  the 
United  States  in  force  on  June  30,  1906,  in  reference  to  American 
Consular  Courts  in  China  and  thereunder  particularly  against  the 
Act  of  Congress  of  March  4,  1913,  Sixty-second  Congress,  Session  III, 
Chapter  150,  Section  9,  Paragraph  12,  37  Statutes  at  Large,  938,  997, 
1002    (District  of  Columbia  Laws)    and  against  the  Act  of  Congress 


UNITED  STATES  V.  ALLEN,  APRIL  18,  1914.  309 

of  March  3,  1899,  Fifty-third  Congress,  Session  III,  Chapter  429,  Title 
II,  Section  472,  30  Statutes  at  Large,  1253,  1340  (Alaska  Penal 
Code)." 

The  principal  question  raised  is  whether  said  statutes, 
or  any  other,  penalizing  the  act  charged,  are  in  force  in 
this  extraterritorial  jurisdiction.  For  it  seems  to  be  well 
settled  that  such  an  act  was  not  an  offense  at  common  law 
and  became  such  only  by  statute.^  The  question  involves 
a  scrutiny  of  the  entire  criminal  jurisdiction  of  this  court 
and  a  review  of  the  sources  thereof. 

II. 

The  Act  of  June  30,  1906,  establishing  this  court  con- 
ferred upon  it, 

"exclusive  jurisdiction  in  all  cases  and  judicial  proceedings  whereof 
jurisdiction  may  now  be  exercised  by  United  States  consuls  and 
ministers  by  law  and  by  virtue  of  treaties  between  the  United  States 
and  China.'" 

But  such  jurisdiction,  both  criminal  and  civil,  had  then 
been  accumulating  for  nearly  two  thirds  of  a  century.  By 
the  original  (Gushing)  treaty  of  1844  "between  the  United 
States  and  China"  the  former  reserved,  and  the  latter  sur- 
rendered, all  criminal  jurisdiction  over  the  former's  na- 
tionals by  providing  that: 

"citizens  of  the  United  States  who  may  commit  any  ,crime  in  China 
shall  be  subject  to  be  tried  and  punished  only  by  the  Consul,  or  other 
public  functionary  of  the  United  States,  thereto  authorized,  accord- 
ing to  the  laws  of  the  United  States."  * 

The  second  treaty  (1858)  contained  the  following  pro- 
vision : 

"citizens  of  the  United  States,  either  on  shore  or  in  any  merchant 
vessel,  who  may  insult,  trouble  or  wound  the  persons  or  injure  the 
property  of  Chinese,  or  commit  any  other  improper  act  in  China,  shall 
be  punished  only  by  the  Consul  or  other  public  functionary  thereto 
authorized,  according  to  the  laws  of  the  United  States."  * 

'  "Offenses  against  the  liquor  laws,  *  *  *  ^j.g  statutory  crimes, 
not  being  indictable  or  punishable  at  common  law."  23  Cyc,  172, 
citing  numerous  cases.     Cf.  Bishop's  New  Criminal  Law,  I,  sec.  505. 

■  34  U.  S.  Stats,  at  Large,  Pt.  I,  814,  sec.  1. 

'Article  XXI;  Malloy,  Treaties,  etc.,  I,  202.  This  and  all  sub- 
sequent treaties  were  expressly  renewed  by  that  of  Oct.  8,  1903, 
Article  XVII,  ante,  pp.  1,  3. 

^Art.  XI;  Malloy,  Treaties,  etc.,  I   (215),  ante,  pp.  2,  3. 


310  I   EXTRATERRITORIAL  CASES. 

This  would  seem  to  extend  the  jurisdiction.  For  while 
the  first  included  "any  crime,"  the  second  embraces  "any 
other  improper  act"  and  the  latter  phrase  appears  broad 
enough  to  cover  Ttialum  prohibitum  as  well  as  malum  in  se." 

III. 

Having  reserved  or  acquired  this  extensive  jurisdiction 
the  American  government  proceeded  seasonably  to  provide 
means  for  its  exercise.  In  1848  Congress  passed  an  Act  "^ 
extending  the 

"laws  of  the  United  States  *     *     *     over  all  citizens  of  the  United 

States  in  China   (and  over  all  others  to  the  extent  that  the  treaties 

justify  or  require)  so  far  as  such  laws  are  suitable  to  carry  such 
treaty  into  effect." 

Again  in  1860  a  more  elaborate  act "  was  passed 

"to  carry  into  full  effect  provisions  of  the  treaties  between  the 
United  States,  China,  Japan,  Siain,  Persia  and  other  countries,  giving 
certain  judicial  powers"  etc. 

in  which  the  foregoing  language  was  almost  literally  re- 
peated.'' 

^  Blackstone's  illustrations  of  this  distinction  are  as  follows: 

"Thus,  by  the  statutes  for  preserving  the  game,  a  penalty  is  de- 
nounced against  every  unqualified  person  that  kills  a  hare,  and 
against  every  person  who  possesses  a  partridge  in  August.  And  so, 
too,  by  other  statutes,  pecuniary  penalties  are  inflicted  for  exercising 
trades  without  serving  an  apprenticeship  thereto,  for  not  burying  the 
dead  in  woollen,  for  not  performing  the  statute-work  on  the  public 
roads,  and  for  innumerable  other  positive  misdemeanors.  Now  these 
prohibitory  laws  do  not  make  the  transgression  a  moral  offense,  or 
sin ;  the  only  obligation  in  conscience  is  to  submit  to  the  penalty,  if 
levied.  It  must,  however,  be  observed  that  we  are  here  speaking  of 
laws  that  are  simply  and  purely  penal,  where  the  thing  forbidden  or 
enjoined  is  wholly  a  matter  of  indifference,  and  where  the  penalty 
inflicted  is  an  adequate  compensation  for  the  civil  inconvenience  sup- 
posed to  arise  from  the  offense.  But  where  disobedience  to  the  law 
involves  in  it  also  any  degree  of  public  mischief  or  private  injury, 
there  it  falls  within  our  former  distinction,  and  is  also  an  offense 
against  conscience."  Comm.  I,  58.  Under  present  day  theories  of 
legislation  it  would  seem  that  the  unlicensed  sale  of  liquors  belongs 
quite  as  much  in  the  second  category  as  in  the  first. 

*Act  of  Congress  of  Aug.  11,  1848,  9  U.  S.  Stats,  at  Large,  276, 
sec.  4. 

'  Act  of  Congress  of  June  22,  1860,  12  U.  S.  Stats,  at  Large,  p.  72. 

'Id.,  sec.  4;  Rev.  Stats.,  sec.  4086. 


UNITED  STATES  V.  ALLEN,  APRIL  18,  1914.  311 

What  are  "the  laws  of  the  United  States"  referred  to  so 
frequently  in  these  quotations  and  which  by  the  terms  of 
the  last  are  "extended  over  all  citizens  of  the  United  States" 
in  China?  Not  the  treaties  for  they  are  mentioned  separ- 
ately ;  hardly  the  Constitution  for  it  has  been  declared  '■*  to 
have  no  extraterritorial  operation;  necessarily  therefore 
the  Acts  of  Congress  then  or  subsequently  in  force.  And 
their  extension  results  quite  independently  of  the  original 
purpose  of  the  acts  themselves.  Thus  Congress  may  enact  a 
law  for  a  limited  area  under  its  exclusive  jurisdiction,  such 
as  Alaska  or  the  District  of  Columbia ;  by  its  terms  it  may 
have  no  force  whatever  outside  of  such  area;  but  if  it  is 
"necessary  to  execute  such  treaties"  (with  China)  and 
"suitable  to  carry  the  same  into  effect"  it  becomes  operative 
here  by  virtue  of  the  acts  above  cited.  Such  we  under- 
stand to  be  the  doctrine  announced  by  the  Court  of  Appeals 
in  a  leading  case.'" 

IV. 

Our  inquiries,  then,  are  narrowed  to  ascertaining  (1) 
whether,  in  order  to  "execute"  our  treaties  with  China  it 
is  "necessary"  to  regulate  the  liquor  traffic  on  the  part  of 
American  citizens  residing  here;  and  (2)  whether  Congress 
has  enacted  a  "suitable"  law  anywhere  which  would  effect 
such  regulation. 

As  to  the  first  inquiry  it  must  be  borne  in  mind  that  our 
government  has,  by  that  clause  of  the  treaty  of  1858,  still 
in  force,  solemnly  undertaken  to  prevent  or  punish  "any 
other  improper  act"  under  its  own  laws.  Is  the  unauthor- 
ized sale  of  intoxicating  liquors  such  an  act?  To  this  ques- 
tion an  almost  unbroken  current  of  American  legislation, 
state  and  national,  affords  an  affirmative  answer.  It  is 
conceded  by  defendant's  counsel  that  every  state  in  the 
Union  has  some  form  of  regulation  for  such  traffic;  that 
in  none  of  them  may  a  citizen  engage  therein  without  some 
authority.  Indeed,  nine  of  our  states  absolutely  prohibit 
the  traffic  and  in  eighteen  more  it  has  been  "voted  out"  of 
territory  containing  a  majority  of  the  inhabitants.^^ 


'In  re  Ross,  ante,  p.  50. 

"  Biddle  v.  United  States,  ante,  p.  120. 

'See   The  Outlook,  Vol.   106,  p.  566. 


312  I  EXTRATERRITORIAL  CASES. 

The  sphere  of  the  Federal  government  is  necessarily  more 
limited  in  this  field  but  Congress  has,  nevertheless,  legiS' 
lated  upon  the  subject  long  and  extensively.  Thus,  to 
mention  some  sporadic  instances,  Congress  undertook  the 
regulation  of  the  liquor  traffic  in  the  District  of  Columbia 
almost  from  the  beginning  of  its  history.  The  act  in- 
corporating the  city  of  Washington  in  1802  expressly  em- 
powered it  "to  provide  for  licensing  and  regulating  retailers 
of  liquors."  ^^  Two  years  later  the  city  council  was  author- 
ized "to  restrain  or  prohibit  tippling  houses,"'^  and  the 
traffic  was  long  regulated  by  said  council  and  its  successors. 
In  1861  Congress  forbade,  under  penalty  of  fine  or  imprison- 
ment, 

"any  person  in  the  District  of  Columbia  to  sell,  give,  or  administer 
to  any  soldier  or  volunteer  in  the  service  of  the  United  States,  or 
any  person  wearing  the  uniform  of  such  soldier  or  volunteer,  any 
spirituous  liquor  or  intoxicating  drink." " 

By  an  act  passed  in  1866  all  sales  of  intoxicating  liquors 
within  the  District  "without  a  license  approved  by  the 
Board  of  Police"  were  penalized^^  and  so,  by  the  act  of 
1878,  were  all  such  sales  by  druggists  and  pharmacists 
for  consumption  on  the  premises.^*'  In  1893  Congress 
passed  a  comprehensive  "Excise  Law"  "  for  the  District 
containing  strict  requirements  as  to  license  and  prohibit- 
ing mier  alia,  sales,  "to  any  person  under  the  age  of  twenty- 
one."  ^^  By  the  act  of  March  3, 1899,  all  sales  of  intoxicating 
liquors  within  the  District  on  Sunday  were  forbidden, ^^ 
and  in  1913  a  still  more  strict  and  detailed  "Excise  law" 

"2  U.  S.  Stats,  at  Large,  p.  197,  7th  Congress,  Ch.  53,  sec.  7. 

"  Id.,  p.  255,  8th  Congress,  Ch.  14,  sec.  3. 

"  12  U.  S.  Stats,  at  Large,  p.  291,  37th  Congress,  1st  Sess.,  Ch.  44. 

''14  U.  S.  Stats,  at  Large,  p.  213,  39th  Congress,  1st  Sess.,  Ch. 
215,  sec.  3. 

"  20  U.  S.  Stats,  at  Large,  p.  139,  45th  Congress,  2nd  Sess.,  sec.  10. 

"  27  U.  S.  Stats,  at  Large,  p.  563,  52nd  Congress,  2nd  Sess.,  Ch.  204. 

"  Id.,  sec.  19.  This  was  enlarged  by  the  Act  of  Apr.  28,  1904  (33 
U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  1815,  sec.  2,  p.  565),  so  as  to  include 
the  owner  and  employees  as  well  as  the  licensee,  and  further  reinforced 
by  the  act  of  March  2,  1907  (34  U.  S.  Stats,  at  Large,  Pt.  I,  p.  1248, 
Ch.  2569). 

'■'30  U.  S.  Stats,  at  Large,  p.  1013,  Ch.  418. 


UNITED  STATES  V.  ALLEN,  APRIL  18,  1914.  313 

was  incorporated  into  the  general  appropriation  act  for  the 
District.  2° 

Alaska,  the  other  Federal  territory  longest  without  a 
local  legislature,  and  hence  under  the  immediate  control  of 
Congress,  was  doubtless  long  considered  "Indian  country" 
within  the  meaning  of  legislation  presently  to  be  noticed. 
But  in  1899  Congress  passed  "an  act  to  define  and  punish 
crimes  in  the  District  of  Alaska  and  to  provide  a  code  of 
criminal  procedure  for  said  District"  ^^  in  which  ample  pro- 
vision is  made  for  regulating  the  liquor  traffic  and  penaliz- 
ing its  conduct  without  a  license.^- 

Nor  has  congressional  action  been  confined  to  mere  re- 
striction for,  besides  the  instance  above  noted,  there  have 
been  several  clearly  defined  spheres  of  prohibitory  legisla- 
tion by  Congress.  As  early  as  1834  it  was  declared  a  penal 
offense 

"if  any  person  shall  introduce,  or  attempt  to  introduce,  any  spirituous 
liquor  or  wine  into  the  Indian  country,"  " 

then  a  very  extensive  area.^*  Vast  states  have  been  carved 
therefrom  but  in  those  portions  of  said  states  which  are 
still  "Indian  country"  this  legislation  remains  in  force  -^  and 
it  has  the  effect  of  absolutely  prohibiting  the  liquor  traffic 

^  37  U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  150,  pp.  997  et  seq. 

''  30  U.  S.  Stats,  at  Large,  Sess.  Ill,  Ch.  429,  p.  1253. 

"  Id.,  Tit.  II,  sees.  462-478.  These  are  now  sees.  2571-2587  of  the 
"Compiled  Laws  of  Alaska"    (1913). 

='  4  U.  S.  Stats,  at  Large,  p.  732,  23d  Cong.,  Sess.  I,  Ch.  161,  sec. 
20.  This  has  been  supplemented  and  strengthened  by  numerous  later 
acts,  e.  g.,  those  of  1864  (13  U.  S.  Stats,  at  Large,  29,  Ch.  33),  1877 
(19  Id.,  244  ),  1884  (23  Id.,  94),  1892  (27  Id.,  260,  Ch.  234),  and  1897 
(29  Id.,  506,  Ch.  109.  Cf.  act  of  1894,  28  Id.,  286,  318),  construed  in 
Perrin  v.  United  States,  232  U.  S.,  478,  58  L.  ed.,  691,  and  Pronovost  v. 
United  States,  232  U.  S.,  487,  58  L.  ed.,  696. 

^*  To  wit  "all  that  part  of  the  United  States  west  of  the  Mississippi, 
and  not  within  the  states  of  Missouri  and  Louisiana,  or  the  territory 
of  Arkansas,  and,  also,  that  part  of  the  United  States  east  of  the 
Mississippi  river,  and  not  within  any  state  to  which  the  Indian  title 
has  not  been  extinguished."  4  U.  S.  Stats,  at  Large,  p.  729,  23d 
Cong.,  Sess.  I,  Ch.  161,  preamble. 

''United  States  v.  Wright,  229  U.  S.,  226,  237,  57  L.  ed.,  1160; 
Hallowell  v.  United  States,  221  U.  S.,  317,  55  L.  ed.,  750;  United 
States  V.  Lariviere,  93  U.  S.,  188,  L.  ed.,  846. 


314  I   EXTRATERRITORIAL   CASES. 

from  all  Indian  reservations.-''  In  full  accord  with  the 
spirit  of  this  legislation  is  the  act  of  1902  which  provides 
that  any  American  national  who  shall  supply  opium  or 
liquors 

"to  any  aboriginal  native  of  any  of  the  Pacific  islands  lying  within 
the  twentieth  parallel  of  north  latitude  and  the  fortieth  parallel  of 
south  latitude  and  the  one  hundred  and  twentieth  meridian  of  longi- 
tude west  and  one  hundred  and  twentieth  meridian  of  longitude 
east  of  Greenwich,  not  being  in  the  possession  or  under  the  pro- 
tection of  any  civilized  power,  shall  be  punishable  by  imprisonment 
not  exceeding  three  months,  with  or  without  hard  labor,  or  a  fine 
not  exceeding  fifty  dollars,  or  both." "' 

In  1862  Congress  enacted  that 

"no  distilled  spirituous  liquors  shall  be  admitted  on  board  of  vessels- 
of-war  except  as  medical  stores."  '* 

In  1890  the  sale  of  liquors  at  army  posts  in  prohibition 
states  was  forbidden  -■'  and  the  next  year  licenses  for  such 
sale  within  one  mile  of  a  soldiers'  home  were  inhibited.^" 
In  1899  this  policy  was  extended  to  all  "premises  used  for 
military  purposes  by  the  United  States,"  •''  and  two  years 
later  the  sale  of  liquors  on  government  transports  was 
prohibited. ■-  In  1903  ■'  and  again  in  1907  ^*  acts  were 
passed  forbidding  such  sales  at  all  immigrant  stations.  In 
the  former  year  they  were  prohibited  "within  the  limits 
of  the  capitol  building"  ^''  and  in  the  latter  year 

"at  any  point  between  the  Government  Hospital  for  the  Insane  and 
the  Home  for  the  Aged  and  Infirm,  or  within  a  radius  of  one-half 
mile  of  the  boundaries  of  either  of  the  said  properties." "" 

="  Clairmont  v.  United  States,  225  U.  S.,  551,  56  L.  ed.,  1201. 

"  32  U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  18,  p.  33. 

"  12  U.  S.  Stats,  at  Large,  Ch.  164,  p.  565,  sec.  4. 

^  26  U.  S.  Stats,  at  Large,  154,  51st  Cong.,  Sess.  I,  Ch.  423. 

'^  Id.,  797,  Sess.  II,  Ch.  385. 

"  30  U.  S.  Stats,  at  Large,  981,  54th  Cong.,  Sess.  II,  Ch.  352,  sec.  17. 

''  31  U.  S.  Stats,  at  Large,  758,  56th  Cong.,  Sess.  II,  Ch.  192,  sec.  38. 

"'  32  U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  1012,  sec.  30,  p.  1220. 

**34  U.  S.  Stats,  at  Large,  Pt.  I,  p.  907,  59th  Cong.,  Sess.  II, 
Ch.  1134,  sec.  30. 

"32  U.  S.  Stats,  at  Large,  p.  1221;  57th  Cong.,  Sess.  II,  Pt.  I,  Ch. 
1012,  sec.  34. 

''  34  U.  S.  Stats,  at  Large,  p.  870 ;  59th  Cong.,  Sess.  II,  Pt.  I,  Ch. 
441. 


UNITED  STATES  V.  ALLEN,  APRIL  18,  1914.     315 

But  not  only  has  Congress  forbidden  the  sale  of  liquors 
in  federal  territory,  property  and  institutions;  it  has  like- 
wise cooperated  directly  with  the  states  which  have  adopted 
prohibitory  laws.  Thus,  in  order  to  nullify  the  so-called 
"original  package"  decision  ■'''  it  was  enacted  in  1890  that 
liquors,  however  transported,  should  be  subject  to  such 
laws  ^^  and  in  1913,  over  the  Presidential  veto,  an  act  was 
passed  absolutely  forbidding  all  transportation  of  liquors 
intended  for  use  in  violation  of  any  local  statute."'-' 

It  will  be  seen,  therefore,  that  in  no  place  under  the 
exclusive  control  of  Congress  is  the  unlicensed  sale  of  in- 
toxicating liquors  a  lawful,  and  a  much  less  "proper"  act. 
Would  it  not  then  be  a  reproach  to  America,  if,  having 
received  from  China  the  surrender  of  all  criminal  jurisdic- 
tion over  Americans  residing  here,  upon  the  solemn  promise 
to  prevent  or  punish  any  act  "improper"  under  the  for- 
mer's laws,  she  were  to  sanction  here  what  is  not  permitted 
in  any  part  of  her  own  domain? 

Counsel  for  defendant,  in  a  very  fair  and  complete  pres- 
entation of  his  views,  admits  in  effect  that  the  act  charged 
is  improper  but  contends  that  it  may  be  reached  by  a 
prosecution  for  a  nuisance  and  that  it  is  therefore  not 
"necessary"  (to  use  the  treaty  term)  to  treat  as  in  force 
here  the  statutory  crime  of  selling  liquors  without  a  license. 
But  we  have  been  unable  to  find  any  case  where  such  sale 
alone  was  held  to  constitute  an  indictable  nuisance.  That 
seems  to  have  resulted  only  where  the  sale  was  actually  in 
violation  of  a  statute  •*"  or  produced  some  other  o.Tensive 
acts,  like  disturbances  or  breaches  of  public  morals  or  de- 
cency.^^  Besides  it  would  be  in  open  disregard  of  the  legis- 
lative intent  to  treat  as  sufficient  here  a  prosecution  for  a 
common  law  offense  when  Congress  has  every  where  else 

^  Leisy  v.  Hardin,  135  U.  S.,  100,  34  L.  ed.,  128. 

''26  U.  S.  Stats,  at  Large,  p.  313,  51st  Cong.,  Sess.  I,  Ch.  728, 
upheld  by  In  re  Rahrer,  140  U.  S.,  545,  35  L.  ed.,  572. 

'"  37  U.  S.  Stats,  at  Large,  p.  699,  62nd  Cong.,  Sess.  Ill,  Pt.  I,  Ch. 
90.  An  interesting  discussion  supporting  this  act  is  found  in  I 
California  Law  Rev.,  499    (by  Mr.  Lindsay  Rogers). 

'"  Bishop's  New  Criminal  Law,  I,  sees.  505,  1119. 

"  Id.,  sec.  1113.  Cf.  Consul  General  Jernigan's  decision  in  a  pre- 
■  decessor  of  this  Court,  June  19,  1895. 


316  I  EXTRATERRITORIAL  CASES. 

provided  a  statutory  one.  Under  the  treaty  of  1858,  as  we 
have  seen,  our  government  has  undertaken  to  punish  the 
"improper  act  *  *  *  according  to  the  laws  of  the  United 
States,"  i.  e.,  the  acts  of  Congress.  To  refuse  punishment 
except  where  the  "improper  act"  is  also  a  common  law  crime 
would  constitute  a  breach  of  this  undertaking  as  well  as  a 
failure  to  meet  the  demands  of  the  situation. 

We  must  conclude,  therefore,  that  so  much  of  those  "laws 
of  the  United  States"  as  make  it  a  crime  to  sell  intoxicating 
liqiiors  without  a  license  are  "necessary  to  execute  such 
treaties"  (with  China).  Are  any  of  them  "suitable  to 
carry  the  same  into  effect?"  Those  sections  of  the  Alaskan 
Act  of  Congress  above  mentioned  which  define  the  ofFense,*^ 
provide  the  procedure  *^  and  fix  the  penalty  "  certainly  seem 
suitable.  Counsel's  contention  that  no  machinery  is  pro- 
vided for  enforcing  said  act  here  must  relate,  if  at  all,  not 
to  prosecutions  for  the  offense  but  to  the  means  of  com- 
mitting the  act  with  impunity — i.  e.,  by  obtaining  a  license. 
We  are  not  at  all  sure  that  the  system  of  licensing  there 
provided  would  not  be  quite  workable  here.  Some  adap- 
tations to  local  conditions  would  doubtless  be  necessary; 
this  court,  e.  g.,  would  need  to  be  substituted  for  the  "Dis- 
trict Court."  But  such  minor  modifications  would  seem 
to  be  authorized  by  the  provision  for  applying  these  laws 
"so  far  as  they  are  suitable." 

In  any  event,  however,  the  inapplicability  of  the  licensing 
feature  would  hardly  invalidate  the  penal  provisions  of  the 
act  for  the  absence  of  such  feature  merely  makes  the  law 
prohibitory  and  this,  as  we  have  seen,  is  no  more  than  much 
congressional  legislation  avowedly  is. 

Much  of  the  foregoing  applies  to  the  further  objection 
that  the  conclusion  we  have  reached  would  require  also  the 
enforcement  of  those  provisions  of  the  same  act "  which 
require  the  licensing  of  occupations  and  lines  of  business. 
Clearly  these  are  not  "necessary  to  execute  such  treaties." 
They  are  mere  revenue  regulations  to  supply  the  Alaskan 

*^Z0  U.  S.  Stats,  at  Large,  p.  1337;  55th  Cong.,  Bess.  Ill,  Ch.  429, 
Tit.  II,  sec.  462. 
''  Id.,  sec.  474. 
"  Id.,  sees.  472,  473. 
''Id.,  sec.  461. 


CAVANAGH  V.  WORDEN,  APRIL  18,  1914.  317 

territorial  treasury  and  have  no  place  in  the  legal  system 
needed  here. 

We  see  no  defect  in  the  form  of  the  demurrer.  It  meets 
the  requirements  ^*  of  the  act  just  referred  to  and  seems 
fully  to  raise  the  question  here  discussed.  But  tho  sufficient 
in  form  we  find  the  demurrer  unfounded  in  substance  for 
the  reasons  above  set  forth  and  it  is  accordingly 

OVERRULED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Tahmi  H.  Cavanagh,  Plaintiff,  v.  Salter  D.  Worden, 

Defendant. 

[Civil  action   No.   131;   filed   April   18,   1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  MARRIAGE:   ANNULMENT:  JURISDICTION.     This  Court's  jurisdiction 

to  annul  a  marriage  for  duress  derives  from  several  distinct 
sources: 

(a)  Various  treaties  with  China  reserving  such  jurisdiction 
in  general  terms; 

(6)   Various   acts   of   Congress   expressly   conferring   it; 

(c)  Inherent  chancery  powers,  which  this  court  is  given  a 
residual  and  suppletory  authority  to  exercise,  including  certain 
jurisdiction  reverting  from  the  ecclesiastical  courts  of  England. 

2.  Id.  :  Id.  :  Grounds.     In  legal  contemplation  marriage  is  a  civil  con- 

tract requiring  the  same  essentials  and  subject  to  annulment 
for  the  same  infirmities  as  ordinary  contracts. 

Joseph  W.  Rice,  Esq.,  for  plaintiff. 
Cecil  R.  Holcomb,  Esq.,  for  defendant. 

Lobingier,  J.: 

This  is  a  bill  for  the  annulment  of  a  marriage  between 
plaintiff  and  defendant  which  the  former  claims  took  place 
thru  duress  and  without  her  consent  or  subsequent  rati- 
fication.    The  defendant  demurs  on  the  ground 

"that  this  Court  has  no  jurisdiction  to  hear  and  determine  said  suit." 
The  question  presented  therefore  is  a  fundamental  one  and 
calls  for  a  review  of  the  sources  of  our  civil  jurisdiction. 
This  court,  as  we  have  had  occasion  to  point  out  in  a 

*•  Id.,  sec.  90. 


318  I   EXTRATERRITORIAL   CASES. 

recent  case,'  has  fallen  heir  to  all  jurisdiction  formerly 
"exercised  by  United  States  Consuls  and  ministers  by  law 
and  virtue  of  treaties  between  the  United  States  and  Chi- 
na."- The  ultimate  source  of  that  jurisdiction  is  the  treaty 
of  1844  which  contained  the  following  clause: 

"All  questions  in  regard  to  rights,  whether  of  property  or  person, 
arising  between  citizens  of  the  United  States  in  China,  shall  be 
subject  to  the  jurisdiction  of,  and  regulated  by  the  authorities  of 
their  own  Government.  And  all  controversies  occurring  in  China  be- 
tween citizens  of  the  United  States  and  the  subjects  of  any  other 
Government  shall  be  regnilated  by  the  treaties  existing  between  the 
United  States  and  such  Government,  respectively,  without  interfer- 
ence on  the  part  of  China.' 

In  the  treaty  of  1858  this  clause  was,  in  substance,  re- 
peated,' and  it  would  seem  clear  that  the  right  here  claimed 
is  "one  of  property  or  person"  is  "subject  to  the  jurisdiction" 
and  should  be  "regulated  by  the  authorities  of"  the  United 
States  government.  For  the  plaintiff  alleges  that  "she  is 
of  British  nationality  and  that  the  defendant  is  a  citizen 
of  the  United  States."  The  defendant,  therefore,  is  not 
in  a  position  to  challenge  jurisdiction  upon  national  grounds 
and  the  plaintiff  herself  has  invoked  jurisdiction.  More- 
over, it  may  well  be  questioned  whether,  thru  the  marriage 
now  assailed,  at  least  until  its  formal  dissolution,  she  is 
not  also  an  American  citizen.'^ 

II. 

The  foregoing  would  seem  sufficient  to  confer  jurisdiction 
in  general  terms.  But  we  are  not  limited  to  these;  for  the 
Federal  government  actually  has  "regulated"  (to  use  the 
language  of  the  treaty)  the  "right"  here  sought  to  be  en- 
forced, to  wit:  the  annulment  of  a  marriage.     Within  less 

'  U.  S.  V.  Allen,  ante,  p.  309. 

'  34  U.  S.  Stats,  at  Large,  Pt.  I,  814,  sec.  1. 

'Art.  XXV;  8  U.  S.  Stats,  at  Large,  592,  Malloy,  Treaties,  etc., 
I,  203,  ante,  p.  2. 

^Art.  XVII;   Id. 

"  "Any  woman  who  is  now  or  may  hereafter  be  married  to  a  citizen 
of  the  United  States,  and  who  might  herself  be  lawfully  naturalized, 
shall  be  deemed  a  citizen."  U.  S.  Rev.  Stats.,  sec.  1994.  Cf.  Kelly  v. 
Owen,  7  Wall.,  496,  19  L.  ed.,  283;  Leonard  v.  Grant,  6  Sawyer,  603, 
5  Fed..  11. 


CAVANAGH  V.  WORDEN,  APRIL   18,  1914.  319- 

than  four  years  after  the  ratification  of  the  treaty  first  above 
mentioned  Congress  passed  an  act  which  invested  the  Com- 
missioner and  consuls  of  the  United  States  "in  regard  to  civil 
rights  whether  of  property  or  person  *  *  *  with  aiZ  ju- 
dicial authority  necessary  to  execute  the  provisions  of  said 
treaty  *  ^=  *  ^^^^  shall  entertain  jurisdiction  in  mat- 
ters of  contract  *  *  *  which  jurisdiction  shall  em- 
brace all  controversies  between  citizens  of  the  United  States, 
or  others,  provided  for  by  said  treaty."  " 

It  will  be  seen  that  this  language  is  very  comprehensive, 
embracing  "civil  rights,  whether  of  property  or  person 
*  *  *  matters  of  contract"  and  "all  controversies 
between  citizens  of  the  United  States  and  others",  and  this 
would  seem  clearly  to  include  the  relief  here  sought.  "It 
is  now  commonly  accepted  doctrine  that  marriage  is  a  civil 
contract".^ 

But  the  statutory  provision  above  quoted  is  not  the  only 
one  which  provides  jurisdiction  in  such  cases.  The  suc- 
ceeding section  of  the  same  act  reads  in  part  as  follows : 

"Such  jurisdiction  in  criminal  and  civil  matters  shall,  in  all  cases, 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which  are  hereby,  so  far  as  is  necessary  to  execute  said  treaty, 
extended  over  all  citizens  of  the  United  States  in  China  (and  over 
all  others  to  the  extent  that  the  terms  of  the  treaties,  respectively, 
justify  or  require)  so  far  as  such  laws  are  suitable  to  carry  said 
treaty  into  effect."  * 

The  phrase  "laws  of  the  United  States"  as  used  here  and 
elsewhere  means,  as  we  have  had  occasion  to  observe,  in  a 

"  Act  of  Cong-ress  of  Aug.  11,  1848,  9  U.  S.  Stats,  at  Large,  p.  276, 
13th  Cong.,  Sess.  I,  Ch.  150,  sec.  3. 

^  26  Cyc,  825,  826,  Note  3.  "Marriage  is  everywhere  regarded  as 
a  civil  contract."  Strong,  J.,  in  Moister  v.  Moore,  96  U.  S.,  76,  24  L. 
ed.,  826.  See  also  Mathewson  v.  Iron  Foundry,  20  Fed.,  281. 
"Marriage  is  considered  by  our  law  as  a  civil  contract;  and  in  this 
agreement,  as  in  all  others,  the  free  consent  of  the  parties  is  essential 
to  the  validity  of  the  contract."  Sanford,  Chancellor,  in  Ferlat  v. 
Gojon,  1  Hopk.,  Ch.  478,  14  Am.  Dec,  554.  "Marriage  is  a  contract, 
and  requires  the  consensus  anhnoritin  as  much  as  any  other  contract. 
It  was  considered  exclusively  a  civil  contract  throughout  all  Chris- 
tendom until  the  time  of  Pope  Innocent  III."  Redfield,  J.,  in  Mount 
Holly  V.  Andover,  11  Vt.,  226,  34  Am.,  Dec,  685. 

'9  U.  S.  Stats,  at  Large,  276,  Ch.  150,  sec.  4;  reenacted,  12  Id.,  p. 
73,  sec.  4;  U.  S.  Rev.  Stats.,  sec.  4086. 


320  I  EXTRATERRITORIAL  CASES. 

recent  case,"  principally  the  acts  of  Congress.  Hence  if 
any  such  act  "is  necessary  to  execute  such  treaties"  it  is 
extended  here  so  far  as  "suitable  to  carry  the  same  into 
effect". 

Now  while  it  is  not  ordinarily  within  the  province  of 
Congress  to  legislate  on  the  subject  of  marriage,  it  has 
nevertheless  done  so  in  numerous  instances ;  in  1860  author- 
izing the  solemnization  of  marriages  by  consular  officers  and 
declaring  such  marriages  valid  if  they  would  have  been  so 
in  the  District  of  Columbia  ;^"  in  1865,  declaring  what  should 
be  sufficient  proof  of  marriage  of  colored  soldiers;"  and  in 
1873  adding  a  similar  declaration  as  regards  Indian  sol- 
diers.^- 

In  providing  for  a  federal  district  to  contain  the  seat  of 
government  it  was  enacted  as  long  ago  as  1790 

"That  the  operation  of  the  laws  of  the  state  within  such  district 
shall  not  be  affected  by  this  acceptance,  until  the  time  fixed  for  the 
removal  of  the  government  thereto,  and  until  Congress  shall  otherwise 
by  law  provide."  " 

At  first  the  said  district  included  territory  from  the  two 
States  of  Maryland  and  Virginia,  but  the  portion  taken 
from  the  latter  having  afterward  been  retroceded,  the  laws 
of  Maryland  were  expressly  continued.^^  Among  these,  of 
course,  are  the  laws  respecting  marriage  and  at  the  time 
of  the  enactment  last  quoted,  a  statute  was  in  force  in  Ma- 
ryland, and  therefore  extended  over  the  District,  providing 
for  the  annulment  of  marriages  upon  various  grounds,  among 
others 

"any  marriage  the  consent  to  which  of  either  party  has  been  procured 
by  force  or  fraud."  " 

°  U.  S.  V.  Allen,  ante,  p.  308. 

"  12  U.  S.  Stats,  at  Large,  p.  79,  36th  Cong.,  Sess.  I,  Ch.  179,  sec. 
31 ;  Rev.  Stats.,  sec.  4082.  Cf.  the  act  of  1873  requiring  marriages  on 
shipboard  to  be  reported  by  the  master.  17  U.  S.  Stats,  at  Large, 
p.  275,  42nd  Cong.,  Sess.  II,  Ch.  322,  sec.  58. 

"  13  U.  S.  Stats,  at  Large,  p.  571,  38th  Cong.,  Sess.  II;  Rev.  Stats., 
sec.  2037. 

"17  U.  S.  Stats,  at  Large,  p.  570,  42nd  Cong.,  Sess.  II,  Ch.  234, 
sec.  11. 

"  1   U.  S.  Stats,  at  Large,  Ch.  28,  sec.  1,  p.   130. 

"  Act  of  Feb.  27,  1801,  2  U.  S.  Stats,  at  Large,  p.  103,  6th  Cong., 
Sess.  II,  Ch.  15. 

''Maryland   Act  of   1777,  sec.    12. 


CAVANAGH  V.  WORDEN,  APRIL   18,   1914.  321 

Nor  was  this  law  recognized  merely  by  extending  it  in 
the  manner  just  mentioned;  for  in  1901  Congress  passed 
"an  act  to  establish  a  code  of  law  for  the  District  of  Colum- 
bia" in  which  the  same  section  in  the  identical  language 
above  quoted  was  expressly  reenacted."' 

Again  in  making  "further  provision  for  a  civil  government 
for  Alaska"  etc.,  in  1900,  Congress  once  more  provided  for 
the  annulment  of  marriages,  in  almost  the  exact  language 
above  quoted, 

"when   the   consent   of  either   party   shall   be   obtained   by   force   or 
fraud."  " 

Now  these  are  explicit  acts  of  Congress  covering  the 
question  arising  in  the  case  before  us ;  they  "are  suitable  to 
carry  into  effect"  the  treaties  above  referred  to;  and  "so 
far  as  is  necessary  to  execute  such  treaties"  they  are  in 
force  here.  This  is  the  doctrine  recognized  by  the  Court 
of  Appeals. ^^ 

III. 

But  if  it  were  true  for  any  reason  that  the  acts  of  Congress 
above  referred  to  are  not  applicable  to  the  case  at  bar,  it 
seems  clearly  to  be  provided  for  by  the  following  clause  of 
the  act  of  1860 : 

"In  all  cases  where  such  laws  are  not  adapted  to  the  object,  or 
are  deficient  in  the  provisions  necessary  to  furnish  suitable  remedies, 
the  common  law,  including  equity  and  admiralty,  shall  be  extended 
in  like  manner  over  such  citizens  and  others  in  the  said  countries."  " 

In  other  words  this  Court  is  vested  with  a  residual  or 
suppletory  chancery  jurisdiction;  and  in  America  chancery 
has  long  since  taken  cognizance  of  causes  like  this. 

In  England,  indeed,  as  in  all  Christian  countries,  matri- 
monial causes  once  belonged  exclusively  to  the  sphere  of 

''  31  U.  S.  Stats,  at  Large,  p.  1391,  56th  Cong.,  Sess.  II,  Ch.  854, 
sec.  1285.  This  was  further  amended  in  1902  by  providing  the  ad- 
ditional ground  of  non-age  for  annulling  marriages.  32  U.  S.  Stats, 
at  Large,  Pt.  I,  p.  543,  47th  Cong.,  Sess.  I,  Ch.  1329;  District  of 
Columbia  Code   (1911),  sec.  1285. 

"31  U.  S.  Stats,  at  Large,  p.  408,  56th  Cong.,  Sess.  I,  Ch.  786, 
tit.  I,  sec.  463;  Compiled  Laws  of  Alaska  (1913),  sec.  1295. 

"  Biddle  v.  United  States,  ante,  p.  120. 

"  12  U.  S.  Stats,  at  Large,  p.  73,  36th  Cong.,  Sess.  I,  Ch.  179,  sec.  4. 

14008  O.  W. 21 


322  I  EXTRATERRITORIAL  CASES. 

the  ecclesiastical  courts  -"  or  as  they  were  sometimes  called 
"Courts  Christian"  ^\  But  in  America  no  such  courts  have 
ever  existed  and  it  was  held  at  an  early  date  that  their 
jurisdiction  "reverted,"  to  use  the  language  of  Chancellor 
Kent,  to  the  lay  tribunals,  i.  e.,  those  exercising  chancery 
powers.  The  entire  language  used  by  the  eminent  author- 
ity last  mentioned  is  worthy  of  repetition  here,  for  it 
discloses  a  situation  parallel  in  some  respcts  to  that  which 
confronts  this  court.  The  learned  Chancellor  in  assuming 
jurisdiction  said:-^ 

"The  fitness  and  propriety  of  a  judicial  decision,  pronouncing  the 
nullity  of  such  a  marriage,  is  very  apparent,  and  is  equally  conducive 
to  good  order  and  decorum,  and  to  the  peace  and  conscience  of  the 
party.  The  only  question,  then,  is,  To  what  Court  does  the  jurisdic- 
tion of  such  a  case  belong?  There  must  be  a  tribunal  existing  with 
us,  competent  to  investigate  such  a  charge,  and  to  afford  the  requisite 
relief;  and  the  power,  I  apprehend,  must  reside  in  this  Court,  which 
has  not  only  an  exclusive  jurisdiction  over  cases  of  lunacy,  but  over 
matrimonial  causes.  The  chancery  powers,  in  case  of  lunacy,  have 
never  been  applied  in  this  case,  because  there  existed  in  England 
another  and  peculiar  jurisdiction  for  the  case;  but  as  such  a  juris- 
diction does  not  exist  here,  the  case  seems  to  belong,  incidentally, 
to  the  more  general  jurisdiction  of  this  Court  over  these  subjects. 
Whatever  civil  authority  existed  in  the  Ecclesiastical  Courts,  touching 
this  point,  exists  in  this  Court,  or  it  exists  nowhere,  and  all  direct 
judicial  power  over  the  case  is  extinguished;  but  that  is  hardly  to  be 
presumed.  For  the  more  full  examination  of  this  very  interesting 
point  of  jurisdiction,  let  us  suppose  the  abominable  case  of  a  marriage 
between  parent  and  child  or  other  persons  in  the  lineal  or  ascending 
and  descending  line, — is  there  no  Court  that  can  listen  to  the  voice 
of  nature  and  reason,  and  sustain  a  suit  instituted  purposely  to  de- 
clare such  a  marriage  void?  If  a  man  marry  his  mother,  or  his  sister, 
they  are  husband  and  wife,  say  the  old  cases,  until  a  divorce,  and  the 
marriage  be  judicially  dissolved."  Are  the  principles  of  natural  law, 
and  of  Christian  duty,  to  be  left  unheeded,  and  inoperative,  because 
we   have    uo    ecclesiastical    Courts    recognized    by    law,    as    specially 


20  "Yhe  w'nole  jurisdiction  in  questions  of  marriage  was,  owing  to 
the  sacramental  character  ascribed  to  the  ordinance  of  matrimony, 
thruout  Christendom  a  spiritual  jurisdiction."  Stubbs,  Const.  Hist, 
of  England,  III,  444. 

"Pollock  &  Maitland,  History  of  the  English  Law  (1895),  I,  125 
et  seq.  Cf.  Fry,  Specific  Performance  and  Laesio  Fidei,  5  Law 
Quarterly  Review,  235. 

"Wightman  v.  Wightman,  4  Johns.  Ch.,  343   (1820). 

*"  39  Edw.  Ill,  31,  b.  9  Hen.  VI,  34.  18  Hen.  VI,  32.  Bro.  tit.  Bas- 
tardy, pi.  23.     1  Roll.  Abr.  340.     A.  I.  4,  357,  A.  3. 


CAVANAGH  V.  WORDEN,  APRIL  18,  1914.  323 

charged  with  the  cognizance  of  such  matters?  All  matrimonial,  and 
other  causes  of  ecclesiastical  cognizance,  belonged  originally  to  the 
temporal  Courts,^^  and  when  the  Spiritual  Courts  cease,  the  cognizance 
of  such  causes  would  seem,  as  of  course,  to  revert  back  to  the  lay 
tribunals." 

The  successor  of  Chancellor  Kent  in  applying  a  similar 
doctrine  to  a  case  closely  parallel  in  its  facts  to  that  stated 
in  the  bill  before  us,  observed : 

"The  jurisdiction  of  this  court  is  that  of  the  English  chancery, 
with  the  various  additions  which  have  been  made  to  it  by  our  own 
laws.  This  court  has  jurisdiction  in  case  of  fraud,  and  especially  in 
all  cases  of  contracts  procured  by  fraud.  In  such  cases  this  court 
effectually  annuls  the  fraudulent  contract,  adjudges  it  void,  causes 
it  to  be  delivered  up  or  cancelled  or  prohibits  the  parties  from  claim- 
ing any  right  under  it.  Such  is  the  undoubted  jurisdiction  of  this 
court  in  other  cases  of  contracts;  and  if  this  court  has  not  the  same 
jurisdiction  where  the  contract  of  marriage  has  been  procured  by 
fraud,  it  is  the  only  case  of  a  fraudulent  contract  to  which  its  juris- 
diction does  not  extend.  In  England,  the  ecclesiastical  courts  would 
have  cognizance  of  such  a  question,  and  would  annul  the  marriage; 
but  it  seems  that  even  in  England  the  court  of  chancery  would  also 
have  jurisdiction  of  such  a  case  as  a  fraud.  If  no  instance  of  this 
kind  is  found,  in  which  the  English  chancery  has  acted,  it  is  evidently 
because  the  ecclesiastical  courts  there  have  an  established  jurisdic- 
tion, and  give  a  summary  remedy  in  all  matrimonial  causes.  We 
have  no  such  courts,  and  no  judicature  possessing  the  general  powers 
of  these  courts.  The  jurisdiction  of  equity  in  cases  of  fraudulent 
contracts  seems  sufficiently  comprehensive  to  include  the  contract  of 
marriage,  and  tho  this  may  be  a  new  application  of  the  power  of  this 
court,  I  do  not  perceive  that  it  is  an  extension  of  its  jurisdiction. 
It  would  be  deplorable  that  in  a  case  of  fraud  so  gross  there  should 
be  no  adequate  remedy."  " 

These  leading  decisions  would  seem  also  to  answer  the 
contention  of  defendant's  counsel  that  a  statute  authorizing 
divorce  is  essential  before  a  court  may  decree  annulment. 
There  was  no  such  statute  in  New  York  at  the  time  and 
in  fact  the  same  court  soon  afterward  refused  to  grant 
divorces  at  all.-" 

Coming  to  the  later  authorities  we  find  the  following 


^*  Vide,  the  case  of  Legitimation  and  Bastardy,  Sir  J.  Davies'  Rep. 
140,  and  his  argument  in  the  case  of  Praemunire,  ib.  273. 

"  Per  Chancellor  Sanford,  in  Ferlat  v.  Gojon,  1  Hopkins  Chancery, 
478,  14  Am.  Dec,  554. 

''Burtis  V.  Burtis,  1  Hopkins  Ch.  557,  14  Am.  Dec.  563. 


324  I  EXTRATERRITORIAL  CASES. 

in  an  exhaustive  opinion  rendered  by  Vice  Chancellor  Pit- 
ney of  the  New  Jersey  Court  of  Chancery  in  a  case  like 
the  present: 

"The  jurisdiction  of  this  court  over  the  subject-matter  of  this  cause 
is  not  based  upon,  or  derived  from,  the  divorce  statute.  Hence  it  is 
not  limited  by  any  of  the  terms  of  that  statute  as  to  residence,  etc. 
It  is  based  on  the  original,  inherent,  and  general  jurisdiction  of  this 
court  over  questions  arising  out  of  contracts  inter  partes,  and  is  ex- 
ercised over  contracts  of  marriage  in  which  is  found  some  vice  in- 
herent in  their  origin  precisely  as  in  cases  arising  out  of  ordinary 
contract."  " 

It  is  true  that  in  some  of  the  American  authorities  ^^ 
especially  the  early  ones,  a  different  doctrine  is  announced. 
But  this  is  the  minority  doctrine.  Dr.  Bishop,^^  the  author 
most  quoted  by  defendant's  counsel,  says: 

"for  avoiding  ordinary  contracts,  the  jurisdiction  of  equity  extends 
to  all  questions  of  fraud,  mistake,  duress,  and  lunacy.  Hence,  when 
an  impediment  of  this  sort  intervenes,  and  jurisdiction  for  nullity 
has  been  conferred  on  no  court  by  statute,  our  equity  tribunals  will 
entertain  the  complaint  and  declare  the  marriage   void." 

A  late  decision  from  one  of  the  former  minority  states 
declares : 

"The  great  weight  of  authority  elsewhere  is  to  the  effect  that 
courts  of  equity  have  jurisdiction  to  declare  marriages  void  even 
where  there  is  no  statute  regulating  the  subject."  ^'^ 

"Avakian  v.  Avakian,  60   Atl.  Rep.  521    (1905). 

'''South  Carolina.  Mattison  v.  Mattison,  1  Strobh.  Eq.  387,  47 
Am.  Dec.  541.  But  in  Davis  v.  Whitlock,  73  S.  E.  Rep.,  90  S.  C.  233, 
171  (1911)  the  court  upheld  the  power  to  annul  a  marriage.  It 
is  true  that  this  decision  is  based  upon  the  South  Carolina  Con- 
stitution of  1895,  giving  the  court  "jurisdiction  of  all  civil  cases." 
But  this  appears  to  be  little,  if  any,  broader  than  the  Act  of 
Congress  of  1860,  above  referred  to,  conferring  "judicial  author- 
ity *  *  *  in  regard  to  civil  rights,  whether  of  property  or 
person." 

Delaware.  Elzoy  v.  Elzoy,  1  Houston,  308,  where,  as  Dr.  Bishop 
says,  "the  court  accept  as  of  course,  and  without  discussion,  a 
doctrine  like  this  of  South  Carolina."  Marriage  &  Divorce,  II,  sec. 
292. 

Pennsylvania.  Pitcairn  v.  Pitcairn,  201  Pa.  St.  368,  50  Atl.  Rep. 
963.     But  the  courts  of  this  state  have   no  general   equity  powers. 

=*II  Marriage  &  Divorce   (6th  Ed.),  sec.  291. 

»« Davis  V.  Whitlock,  73  S.  E.,  90  S.  C.  233,  174   (1911). 


CAVANAGH  V.  WORDEN,  APRIL  18,  1914.  325 

And  the  leading  American  text  ^^  summarizes  the  existing 
law  on  this  point  as  follows : 

"A  court  of  chancery,  in  the  exercise  of  its  ordinary  powers  and 
jurisdiction  and  without  the  authority  of  a  statute,  may  take  ju- 
risdiction of  a  suit  to  annul  a  marriage,  where  the  cause  alleged 
is  one  of  the  well  known  grounds  on  which  equity  gives  relief  in 
cases  of  contract,  such  as  fraud,  error,  duress,  or  mental  incapacity." 

In  the  argument  considerable  stress  was  laid  upon  an 
early  decision  ^-  of  this  court  regarding  divorce.  But  there 
is,  of  course,  a  very  clear  distinction  -^  between  that  and 
the  annulment  here  sought,  which  can  be  granted  only  for 
grounds  antedating  the  marriage  and  preventing  its  lawful 
occurrence;  while  divorce  presupposes  a  valid  marriage 
but  dissolves  it  upon  grounds  arising  subsequently.  Juris- 
diction to  decree  annulment  of  marriage,  as  of  any  other 
contract,  may  therefore  well  exist  without  jurisdiction  to 
grant  a  divorce.  Besides  the  case  referred  to  was  decided 
before  the  Court  of  Appeals  decision  above  cited  and  it 
seems  more  than  doubtful  whether  the  two  can  be  recon- 
ciled. 

The  jurisdiction  of  this  court  to  grant  the  relief  sought, 
to  wit,  the  annulment  of  a  marriage  on  the  ground  of 
duress,  would  seem,  therefore,  to  arise  from  any  one  of 
the  following  sources,  viz. : 

(a)  The  treaties  which  reserve  and  impliedly  confer  jurisdiction 
"in  regard  to  rights,   whether   of  person   or   property." 

( b )  The  acts  of  Congress  which  invest  this  court  with  full 
judicial  powers  "in  regard  to  civil  rights"  including  "matters  of 
contract"  and  which  elsewhere  expressly  provide  for  the  annulment 
of  marriages   where   consent   is   obtained   "by   force   or   fraud." 

(c)  The  inherent  jurisdiction  of  equity  which  this  court  is  ex- 
pressly permitted  to  exercise  where  the  laws  "are  deficient  in  the 
provisions  necessary  to  furnish  suitable  remedies." 

(d)  The  reversionary  jurisdiction  of  the  ecclesiastical  courts  in 
matrimonial  causes,  to  which  chancery  has  fallen  heir. 


^^  26  Cyc.  908,  Note  8,  and  authorities  there  cited. 

''  McDermid  v.  McDermid,  March  18,  1907. 

^  See  among  many  authorities  Burtis  v.  Burtis,  1  Hopkins  Ch. 
557,  14  Am.  Dec.  563;  Willard  v.  Willard,  6  Baxt.  (Tenn.)  397, 
32  Am.  Eep.  529;  Taylor  v.  White,  160  N.  C,  38,  75  S.  E.,  941  (1912). 


326  I  EXTRATERRITORIAL  CASES. 

Such  being  the  ample  powers  conferred  upon  this  court 
we  have  no  doubt  of  its  power  to  grant  the  relief  prayed, 
provided  the  allegations  of  the  bill  are  proved. 

The  demurrer  is  accordingly 

OVERRULED.^* 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  John  T.  Allen. 

[Criminal  cause  No.  90;  filed  April  25,  1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  DISORDERLY   HOUSES:    Keeping  of,   is  punishable   as   a   nuisance 

under  the  common  law  in  force  in  this  jurisdiction. 

2.  Id.:   Distinct  Offenses.     Such  punishment  is  not  prevented  be- 

cause the  keeper  of  such  house  is  also  subject  to  a  penalty  for 
selling  liquors  therein  without  a  license. 

3.  Id.:   Evidence.     Acts  committed  by  frequenters  thereof,  tho  out- 

side, may  be  considered  in  determining  the  character  of  such 
a  house. 

4.  Id.  :    Penalty.     There  being  no  penalty  prescribed  by  the   com- 

mon law,  discretionary  punishment  was  imposed  in  moderation. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prose- 
cution. 

Messrs.  Fleming  &  Davies  by  Mr.  Fleming,  for  the  de- 
fendant. 

Lobingier,  J.: 

The  information  here  charges  the  defendant  with 

"the  crime  of  keeping  a  disorderly  house  in  that  said  John  T.  Allen  at 
Shanghai,  China,  heretofore  and  from,  or  from  about,  May  1,  1913,  and 
thence  to  or  to  about  January  16,  1914,  provided  and  maintained  a 
building,  known  as  the  Oregon  Bar,  situated  on  North  Szechuen  Road 
Extension  at  said  Shanghai,  China  and  without  the  boundaries  of  the 
foreign  municipalities  at  said  Shanghai  with  furnishings,  food  and 
drink  and  intoxicating  liquors,  and  with  attendance  and  servants, 
open  to  the  public  day  and  night,  and  beyond  midnight  and  until  two 
hours  beyond  midnight,  wherein  and  whereby  certain  evil-disposed 
persons,  both  men  and  women,  of  evil  name  and  conversation,  in- 
temperately  and  unlawfully  drinking  intoxicating  liquors  and  curs- 
ing,  quarrelling,   and   indecently,  wantonly   and   lewdly   misbehaving 

**  See  post,  p.  365,  for  opinion  on  the  merits. 


UNITED  STATES  V.  ALLEN,  APRIL  25,  1914.     327 

themselves,  he  did  cause  to  come  together,  associate  and  remain, 
to  the  common  nuisance  of  persons  there  passing  and  residing,  against 
the  treaties  between  the  United  States  and  China  and  against  the 
laws  of  the  United  States  in  force  on  June  30,  1906,  in  reference  to 
American  Consular  Courts  in  China  and  against  the  public  peace." 

It  will  be  seen  that  the  first  element  of  the  offense 
charged  is  that  the  place  in  question  was  "open  to  the 
public  day  and  night  *  *  *  ^j^^j  until  two  hours  be- 
yond midnight."  This  is  practically  undenied.  The  de- 
fendant himself,  testifying  in  his  own  behalf,  admits  that 
from  the  5th  to  the  10th  of  each  month  he  kept  open  until 
after  one  A.  M.  while  the  witnesses,  Smith  and  Hall,  whose 
testimony  is  not  contradicted,  declare  that  they  have  seen 
the  place  open  as  late  as  3  or  4  A.  M. 

The  assembling  of  "certain  evil-disposed  persons,  both 
men  and  women,  of  evil  name  and  conversation"  at  the 
place  in  question,  which  is  the  second  element  of  the  of- 
fense charged,  seems  also  to  be  established  by  the  over- 
whelming preponderance  of  testimony.  The  accused  ad- 
mits that  he  employed  two  women  at  the  place  (one  of 
whom  had  been  a  person  of  evil  life)  who  danced  with  the 
customers  and  that  both  of  them  slept  in  a  room  above 
the  bar  as  did  also  the  defendant  himself.  Four  of  the 
five  witnesses  for  the  prosecution  testified  to  having  seen 
women  at  the  place  dancing  and  mingling  with  its  patrons, 
one  witness  (Singer)  declaring  "I  have  seen  women  there 
themselves  mixed  up  with  the  people  who  were  causing 
the  disturbance." 

The  claim  that  women  visit  other  bars  in  the  Interna- 
tional Settlement  of  Shanghai  does  not  afford  a  sufficient 
excuse.  The  one  witness  (Hyland)  for  the  defense  who 
was  cross-examined  on  this  point  could  not  recollect  having 
seen  women  at  such  bars,  except  in  one  instance  where  the 
wife  of  the  proprietor  was  present.  But  even  if  the  claim 
were  well  founded  we  must  observe  American  standards 
in  determining  what  would  be,  under  our  treaties,  "an 
improper  act"  for  Americans  in  this  extraterritorial  juris- 
diction and  our  laws  ^  generally  forbid  women  to  frequent 
bars.     Besides,  as  will  be  seen,  the  evidence  discloses  that 

'Act  of  Congress  of  March  3,  1899,  Sess.  Ill,  30  U.  S.  Stats,  at 
Large,  Ch.  429,  tit.  II,  sec.  478,  p.  340. 


328  I  EXTRATERRITORIAL  CASES. 

women  more  than  merely  visited  the  Oregon  Bar  and  one 
of  the  witnesses,  Detective  Smith,  testifies  also  to  having 
seen  there  men  who  were  at  least  reputed  to  be  gamblers 
and  Constable  O'Dyer  saw  games  played  by  two  groups 
of  sailors  with  money  on  the  table. 

According  to  the  third  element  of  the  charge  persons 
thus  assembled  at  the  Oregon  Bar  who  were  in  the  habit  of 

"intemperately  and  unlawfully  drinking  intoxicating  liquors  and  curs- 
ing, quarrelling,  and  indecently,  wantonly  and  lewdly  misbehaving 
themselves." 

All  the  Government  witnesses  who  visited  the  place  tes- 
tify to  quarrelling  and  fighting  on  the  part  of  its  patrons. 
Constable  O'Dyer  heard  "drunken  singing"  and  "obscene 
language,"  Constable  Hall  saw  fighting  in  the  course  of 
which  a  large  window  was  broken,  and  other  witnesses 
testified  that  the  place  was  a  nuisance  to  passers  by,  some 
of  whom  were  school  children. 

It  is  true  that  the  witness,  Hyland,  for  the  defense, 
testifies  that  he  never  saw  any  serious  disorder  at  the 
Oregon  Bar  and  by  stipulation  it  was  agreed  that  several 
other  witnesses  would  so  testify;  but  we  cannot  regard 
this  as  equivalent  to  the  positive  statements  of  numerous 
witnesses  that  they  did  see  and  hear  such  disturbances. 
Certainly  the  testimony  of  a  witness  that  he  observed  a 
certain  occurrence  is  not  refuted  by  the  statement  of 
another,  tho  quite  as  positive,  to  the  effect  that  he  did 
not  observe  it;  for  he  may  not  have  had  the  same  oppor- 
tunities.2 

The  defendant  himself  does  not  deny  the  occurrence  of 
disorders  outside,  tho  near,  his  place  of  business  but 
excuses  himself  upon  the  ground  that  he  was  not  respon- 
sible for  what  occurred  in  the  road  which  he  says  "was 
up  to  the  police."  Such,  however,  is  not  the  legal  standard 
of  responsibility  in  such  cases.  A  recognized  authority  ^ 
states  the  rule  as  follows: 

"The  law  holds  the  keeper  liable  for  the  disorderly  conduct  in 
and  about  the  house,  and  even  for  disorderly  acts  outside  the  house 
by  persons  who  became  intoxicated  therein." 

■  See  Sun  Ming-shan  v.  Viloudaki,  ante,  p.  263. 

M4  Cyc.  p.  487  citing  State  v.  Burchinal,  4  Harr.   (Del.)   572. 


UNITED  STATES  V.  ALLEN,  APRIL  2  5,  1914.     329 

As  was  said  in  a  leading  case  * 

"The  state  was  not  confined  to  proof  of  what  took  place  in  de- 
fendant's building.  It  might  show  that  drunkenness,  quarrelling,  or 
fighting  occurred  at  the  place,  but  without  the  building,  if  they 
occurred  by  defendant's  permission,  or  were  occasioned  by  the  busi- 
ness which  he  was  carrying  on  in  the  building." 

The  substantial  features  of  the  information  seem,  there- 
fore, amply  to  be  proven  and  that  they  constitute  a  punish- 
able offense  under  the  common  law  which,  so  far  as 
"necessary  to  execute  the  treaties,"  is  in  force  in  this 
jurisdiction,  will  also  appear  from  the  authorities. 

Thus  in  an  early  prosecution  ^  before  the  United  States 
Court  for  the  District  of  Columbia  "for  keeping  a  dis- 
orderly house"  the  jury  was  instructed  that  if  the  defendant 

"kept  a  public  and  open  shop  in  this  city,  in  which  he  sold  liquors  to 
persons  not  lodgers  or  boarders  in  his  house,  at  times  to  persons  who 
were  drunk,  at  times  to  persons  who  came  in  drunk,  and  drank  there 
and  went  out  drunk;  sometimes  to  persons  who  came  out  and  went 
away  from  his  house  in  a  noisy  manner  and  skylarking  in  the  streets; 
that  his  shop  was  generally  kept  open  on  Sundays,  and  that  persons 
not  lodgers  or  boarders  bought  and  drank  spirituous  liquors  in  the 
shop  on  Sundays,  and  that  he  had  no  accommodations  for  travellers 
or  boarders,  neither  beds  nor  stables  for  such  accommodation,  and  that 
he  had  no  license  for  keeping  a  public  house  from  the  corporation, 
then  the  charge  of  the  indictment  is  sustained." 

A  conviction  was  upheld  under  an  indictment  charging 
that  the  defendant 

"kept  a  disorderly  house,  and  for  lucre  and  gain  caused  and  procured 
evil-disposed  persons  to  frequent  and  come  together  in  his  house, 
and  permitted  them  at  unlawful  times  to  be  and  remain  there  drink- 
ing, tippling,  cursing,  swearing,  and  quarrelling  to  the  common  nuis- 
ance, and  in  manifest  destruction  and  corruption  of  youth  and  other 
people  in  their  manners',  conversation,  morals,  and  estate,  etc."  ° 

A  verdict  of  guilty  was  also  returned  and  sustained 
under  an  indictment  charging  that  the  accused 

^  State  v.  Pierce,  65  Iowa,  p.  85,  21  N.  W.  195,  citing  State  v. 
Webb.  25  Iowa  235. 

°  U.  S.  v.  Bede,  24  Fed.  Cases,  1063.  See  also  U.  S.  v.  Benner,  5 
Cranch    (C.  C.)    347,  24  Fed.   Cases,  1089. 

*  U.  S.  V.  Elder,  4  Cranch   (C.  C.)   507,  25  Fed.  Cases  996 


330  I   EXTRATERRITORIAL  CASES. 

"kept  a  certain  unlawful,  disorderly,  and  ill-governed  house  in  the 
city  of  Washington  in  tKe  said  county,  as  a  common  tavern,  without 
any  lawful  authority  or  license  therefor,  did  take  upon  himself  to 
keep  and  maintain;  and  the  said  house  did  then  and  there,  at  the 
days  and  times  aforesaid,  keep  as  a  common  tippling-house;  and  did 
therein  openly  sell  spirituous  liquors  to  all  persons  calling  for  the 
same,  and  allow  the  same  to  be  drunk  by  such  persons,  in  and  about 
his  said  house  at  all  times,  both  at  day  and  at  night,  and  on  all  days, 
both  Sundays  and  other  days;  and  did  permit  certain  idle  and  ill- 
disposed  persons,  to  the  jurors  aforesaid  unknown,  to  assemble  to- 
gether in  his  said  house,  and  then  and  there  continue  drinking  and 
tippling,  to  the  common  nuisance  of  the  good  people  of  the  United 
States,  to  the  evil  example  of  all  others,  the  corruption  of  the  public 
morals,  and  against  the  peace  and  government  of  the  United  States." ' 

So  in  an  early  Indiana  case  where  the  trial  court  had 
quashed  an  indictment  in  similar  terms  its  order  was  re- 
versed by  the  Supreme  Court  which  observed:^ 

"It  is  impossible  not  to  perceive  that  a  common  tippling-house, 
in  and  about  which  idle  and  dissolute  persons  are  encouraged  to 
assemble,  and  are  permitted  to  drink,  swear,  quarrel,  and  shout,  by 
night  as  well  as  by  day,  has  the  same  evil  tendency  as  the  nuisances 
referred  to." 

Nor  does  the  fact  that  the  accused  is  also  subject  to 
punishment  for  selling  intoxicating  liquors  without  a  license 
prevent  his  prosecution  for  the  offense  of  keeping  a  dis- 
orderly house.  The  two  are  distinct  and  independent 
crimes,"  and  the  fact  that  they  arise  from  the  same  act 
or  course  of  conduct  does  not  constitute  double  jeopardy.^" 

We  have  no  alternative  therefore  but  to  find  the  accused 
guilty  as  charged. 

In  the  imposition  of  the  punishment,  however,  we  are 
vested  with  full  discretion  for  the  common  law  did  not 
prescribe  a  penalty  for  the  offense  charged,"  and  this  would 
seem  to  be  a  case  for  this  court  to  exercise  the  authority 


"U.  S.  V.  Columbus,  5  Cranch  (C.  C.)   304,  25  Fed.  Cases,  589. 

'  State  V.  Bertheol,  6  Blackford,  674,  39  Am.  Dec.  442.  And  see 
other  similar  cases  cited  in   14  Cyc.  p.   487. 

'■'  Parker  v.  State,  61  N.  J.  L.  308,  39  Atl.  Kept.  651  (affirmed  62 
N.  J.  L.  p.  801).     See  also  cases  in  Note  5  above. 

'"Gavieres  v.  United  States,  220  U.  S.,  338,  55  L.  ed.  489;  Flemister 
V.  United  States,  207  U.   S.  372,  52   L.  ed.,  252. 

"  14  Cyc.  p.  514,  Note  48. 


UNITED  STATES  V.  ALLEN,  APRIL  2  5,  1914,     331 

conferred  upon  its  predecessors,  the  consular  courts,  "to 
award  punishment  according  to  the  magnitude  and  aggrava- 
tion of  the  offense."  ^- 

The  accused  is  a  young  man,  against  whom  no  evidence 
is  offered  of  previously  bad  reputation.  He  has  served  a 
three  years  term  of  enlistment  in  the  United  States  Navy 
and  carries  an  honorable  discharge.  Moreover,  it  appears 
that  some  time  since  he  disposed  of  his  interest  in  the 
Oregon  Bar  and  is  not  now  engaged  in  any  questionable 
occupation.  It  is  our  earnest  desire  to  encourage  him  in 
his  present  course  and  to  provide  no  obstacle  to  its 
continuance. 

As  the  offense  here  charged  is  the  first  of  its  kind  on  his 
part  and  as  there  is  no  indication  of  its  intended  repetition, 
we  feel  that  the  deterrent  effect  which  is  the  law's  one  aim, 
will  be  accomplished  by  a  moderate  punishment  and  we 
are  disposed  to  exercise  accordingly  the  discretion  con- 
ferred upon  us. 

The  accused  is  consequently  sentenced  to  pay  a  fine  of 
one  hundred  dollars,  Mexican  currency,  and  the  costs  of 
this  prosecution. 


On  the  same  day  similar  sentence  was  imposed  as  fol- 
lows on  the  same  defendant  in  cause  No.  89,  wherein  a 
demurrer  to  the  information  had  already  been  overruled. 

The  nature  of  the  offense  here  charged  and  the  Court's 
jurisdiction  to  try  and  sentence  the  accused  therefor  were 
fully  considered  in  disposing  of  the  demurrer  ^  and  need 
not  further  be  considered  here. 

Defendant  asked  for  time  to  plead  which  was  granted, 
the  District  Attorney  at  the  same  time  requesting  an  ex- 
plicit ruling  on  the  Court's  authority  to  grant  such  leave 
of  which  we  have  no  doubt.^ 

At  the  opening  of  the  trial  the  accused  expressly  admit- 
ted all  the  material  averments  of  the  information,  in  effect 

"12   U.  S.  Stats.,  Ch.  179,  sec.  14,  p.  75;   Rev.  Stats.  U.  S.,  sec. 
4101;  see  U.  S.  v.  Grimsinger,  ante,  p.  282. 
^Ante,  p.  308. 
^  Bishop's  New  Criminal  Procedure,  I,  sec.  731. 


332  I   EXTRATERRITORIAL   CASES. 

pleading  guilty  thereto,  but  took  the  stand  in  his  own  be- 
half stating  that  he  was  unaware  of  the  necessity  of  a  license 
for  the  sale  of  intoxicating  liquors  and  that  other  American 
citizens  in  different  parts  of  China  had  engaged  in  the  traf- 
fic without  such  license. 

Technically^  of  course,  this  is  no  defense;  for  everyone 
is  presumed  to  know  the  law  and  one  of  the  most  time- 
honored  of  legal  maxims  is  ignorantia  legis  haud  excusat. 
Indeed  were  it  otherwise  the  difficulty  of  convictions  would 
be  almost  insuperable  for  very  few  law  breakers  are  familiar 
with  the  precise  terms  of  the  statutes  which  they  infringe. 
So  far,  therefore,  as  technical  guilt  is  concerned  the  plea 
of  ignorance  cannot  be  accepted. 

When  we  come  to  consider  the  penalty,  however,  such  a 
plea  is  pertinent  and  may  well  be  taken  into  account.  It 
is  true,  as  the  accused  states,  that  no  effort  has  heretofore 
been  made  to  apply  or  enforce  these  license  laws.  Indeed 
their  applicability  and  enforcement  here  involved  legal 
questions  in  regard  to  which  there  may  well  be  a  difference 
of  opinion  and  while  we  have  reached,  the  conclusion  that 
they  are  "necessary"  and  "suitable  to  execute  our  treaties" 
with  China  it  does  not  follow  that  the  reaching  of  a  different 
conclusion  by  the  accused  or  his  advisers  involves  criminal 
intent.  On  the  contrary  it  seems  quite  probable  that  he 
was  far  from  intending  to  violate  any  license  law. 

Another  circumstance  which  we  feel  obliged  to  con- 
sider is  that  the  accused  has  already  been  prosecuted  and 
convicted  of  a  similar  offense  growing  out  of  the  same  cir- 
cumstances and  while,  as  we  have  found,  these  offenses  are 
technically  distinct  and  subject  to  separate  penalties,  the 
deterrent  effect  of  punishment,  which  is  its  sole  purpose, 
must  be  kept  in  view  and  in  the  case  at  bar  we  are  of  the 
opinion  that  such  effect  will  follow  the  imposition  of  a 
fine  similar  to  that  in  criminal  cause  No.  90,  which  is  the 
minimum  penalty  for  the  offense  here  admitted.^ 

The  accused  is  accordingly  sentenced  to  pay  a  fine  of  one 
hundred  dollars,  United  States  currency  and  the  costs  of 
this  prosecution. 

'  Act  of  Congress  of  March  3,  1899,  55th  Cong.,  sess.  Ill,  30  U.  S. 
Stats,  at  Large,  Ch.  429,  tit.  II,  sec.  472,  p.   1340. 


CONNELL  BROS.  V.  DIEDERICHSEN  &  CO.,  MAY  18,  1914.  333 
IN  THE  UNITED  STATES  CIRCUIT  COURT  OF  APPEALS. 
CoNNELL  Bros.  Co.  v.  H.  Diederichsen  &  Co. 

[213  Fed.,  737,  130  C.  C.  A.,  251,  No.  2361;  filed  May  18,  1914.] 

SYLLABUS. 
(By  the  Editor.) 

1.  PLEADING:    PARTIES.     Denial  of   an   averment   that   plaintiff    is    a 

"firm  or  company"  does  not  challenge  its  capacity  to  sue  which 
must  be  raised  by  demurrer. 

2.  Id.:  Proof  of  such  averment  is  waived  by  a  stipulation  for  judgment 

upon  such  findings  as  the  court  should  make  upon  the  general 
issues. 

3.  CONTRACTS:    TlME   OF    PERFORMANCE.     "In    the    contracts    of   mer* 

chants  time  is  of  the  essence"  (115  U.  S.,  188)  and  a  vendor 
who  undertakes  to  ship  "during  February"  is  liable  to  the 
vendee  if  shipment  is  not  made  until   March. 

4.  Id.  :  Id.  :  Waiver.     Such  delay  found  not  to  have  been  waived  nor 

due  to  unavoidable  causes. 

5.  Id.  :  Id.  :  The  Measure  of  Damages  where  such  vendee  receives  the 

cargo  under  protest,  is  the  difference  between  the  highest  ob- 
tainable proceeds  of  its  sale,  and  the  purchase  price  with  interest 
and  necessary  charges. 

6.  Id.  :  The  rule  of  ejusdem  generis  applied. 

Messrs.  Kerr  &  McCord  and  C.  H.  Ha7iford,  of  Seattle, 
and  Fleming  &  Davies,  of  Shanghai,  for  plaintiff  in  error. 

Messrs.  George  H.  Whipple,  Allen  L.  Chickering,  and 
Chickering  &  Gregory,  of  San  Francisco,  and  Jernigan  & 
Fessenden,  of  Shanghai,  for  defendant  in  error. 

Before  Gilbert  and  Ross,  Circuit  Judges,  and  Dietrich, 
District  Judge. 

Dietrich,  D.  J.: 

This  case  comes  here  by  writ  of  error  from  the  United 
States  Court  for  China,  for  the  review  of  a  judgment 
against  the  plaintiff  in  error,  hereinafter  referred  to  as 
the  defendant,  for  the  amount  of  $3,830.89  and  costs.  The 
pleadings  are  the  petition  or  complaint  and  the  defendant's 
answer  thereto.  The  petition  alleges  that  the  plaintiff, 
H.  Diederichsen  &  Co.,  is  a  German  firm  or  company,  doing 
business  at  Chefoo  and  Shanghai,  China,  and  elsewhere; 
that  on  or  about  the  17th  day  of  October,  1911,  it  entered 


334  I  EXTRATERRITORIAL  CASES. 

into  a  written  contract,  whereby  it  purchased  from  the 
defendant  80,000  sacks  of  flour,  to  be  consigned  to  plaintiff 
at  Chefoo,  China,  and  to  be  shipped  from  Seattle,  Tacoma, 
Portland,  San  Francisco,  or  Vancouver,  "by  a  steamer  sail- 
ing from  any  of  said  ports  during  the  month  of  February, 
1912."  It  is  further  alleged  that  the  flour  was  not  shipped 
until  about  the  14th  day  of  March,  and  that,  upon  the  ar- 
rival of  the  cargo  at  Chefoo,  the  plaintiff  accepted  it  under 
protest  only  for  the  purpose  of  mitigating  the  loss  which 
might  follow  a  refusal  to  receive  it.  The  prayer  is  for 
damages  alleged  to  have  been  sustained  by  reason  of  the 
delay.  In  its  answer  the  defendant,  for  want  of  sufficient 
'knowledge  or  information,  denies  that  the  plaintiff  is  a 
German  firm  or  company.  It  expressly  admits  "that  on  or 
about  the  17th  day  of  October,  1911,  at  Chefoo,  China,  the 
plaintiffs  and  the  defendant  entered  into  a  written  agree- 
ment, whereby  the  plaintiffs  purchased  from  the  defendant 
80,000  sacks  of  flour."  And  it  further  admits  that  by  the 
terms  of  the  contract  it  agreed  to  ship  the  flour  "by  a 
steamer  sailing  from  any  of  said  ports  (the  ports  named 
in  the  complaint)  during  the  month  of  February,  1912,  and 
consigned  to  the  plaintiffs  at  Chefoo,  China."  But  it  al- 
leges that  its  obligation  in  this  respect  was,  by  the  con- 
tract, made  "contingent  upon  strikes,  accidents,  and  other 
delays  unavoidable  or  beyond  the  control  of  the  defendant." 
It  further  alleges  that  it  chartered  the  steamship  Harpagus 
for  the  shipment  of  the  cargo,  and  that  the  flour  was 
delivered  to  Messrs.  Dodwell  &  Co.,  agents  for  the  Har- 
pagus, upon  the  wharf  at  Tacoma,  Wash.,  not  later  than 
the  28th  day  of  February,  1912,  and  that  bills  of  lading 
covering  the  shipment  were  issued  to  the  defendant  by 
such  agents  prior  to  or  on  February  28,  1912.  It  also 
denies  that  the  plaintiff  sustained  any  damage. 

There  was  a  preliminary  hearing  for  the  determination 
of  the  question  as  to  whether  or  not  there  had  been  any 
breach  of  the  contract,  and,  the  decision  of  the  court  being 
favorable  to  the  plaintiff,  a  subsequent  trial  was  had  for 
the  determination  of  the  amount  of  damages  to  be  awarded. 
*  *  *  This  mode  of  procedure  was  in  accordance  with 
a  written  stipulation  entered  into  by  the  parties  and  filed 


CONNELL  BROS.  V.  DIEDERICHSEN  &  CO.,  MAY  18,  1914.  335 

in  the  cause,  and,  inasmuch  as  this  stipulation  is  rehed 
upon  as  a  waiver  of  certain  objections,  we  quote  the  sub- 
stantive parts  thereof  in  full: 

"(1)  That  the  hearing  and  trial  of  said  action  be  confined  in  the 
first  instance  as  to  the  issue  whether  or  not  the  defendant  herein  has 
committed  a  breach  of  the  contract  mentioned  in  the  pleadings  herein 
as  to  shipment  or  has  committed  such  a  breach  of  the  contract  as  to 
shipment  as  will  render  it  liable  in  damages  to  the  plaintiffs  if  dam- 
ages have  in  fact  been  sustained  by  the  plaintiffs.  And  that  if  said 
court  should  hold,  find,  and  decide  that  the  defendant  had  not  com- 
mitted a  breach  of  said  contract,  or  such  a  breach  of  the  same  as 
would  render  it  liable  in  damages  to  the  plaintiffs,  then  that  such 
judgment  be  made  final. 

(2)  That,  in  event  the  court  should  hold,  find,  and  decide  that  the 
defendant  had  committed  such  a  breach  of  the  said  contract  as  would 
render  it  liable  if  damages  had  in  fact  been  sustained  by  the  plain- 
tiffs herein  by  reason  thereof,  then  the  above-entitled  matter  shall 
be  again  set  for  hearing  on  the  issue  of  damages,  and  that  evidence 
in  relation  thereto,  both  on  behalf  of  the  plaintiffs  and  on  behalf  of 
the  defendant,  may  be  offered  and  introduced  by  the  respective  parties, 
and,  after  a  full  hearing  and  argument  thereon,  the  final  judgment 
and  finding  of  the  court  be  made  and  entered  herein." 

The  first  proposition  argued  involves  the  question  of  the 
identification  of  the  plaintifi"  or  its  capacity  to  sue.  It  is 
alleged  to  be  a  "German  firm  or  company."  In  the  answer, 
as  we  have  seen,  this  averment  is  denied  for  want  of  suf- 
ficient knowledge  or  information.  The  question  was  not 
raised  in  the  lower  court,  and  is  not  covered  by  any  assign- 
ment of  error ;  it  is  suggested  in  the  brief  for  the  first  time. 
Clearly,  if  it  involves  nothing  more  than  absence  of  proof, 
we  cannot  consider  it,  for,  even  were  there  a  sufficient  as- 
signment, proof  upon  all  but  two  general  issues,  which  do 
not  include  this  question,  was  waived  by  the  written  stip- 
ulation. It  is  argued,  however,  that  the  point  involves 
something  more  than  a  want  of  proof,  and  that,  it  ap- 
pearing upon  the  face  of  the  pleadings  that  the  plaintiff 
is  without  legal  entity,  we  should  take  cognizance  of  the 
alleged  error,  even  tho  not  assigned.  The  suggestion 
that  the  question  is  jurisdictional  is  thought  to  be  without 
merit,  and,  that  being  the  case,  the  objection  comes  entirely 
too  late.^     In  its  answer  the  defendant  expressly  admitted 

'  Bort  v.  McCutcheon,  187  Fed.  798,  109  C.  C.  A.  558. 


336  I  EXTRATERRITORIAL  CASES. 

making  the  contract  with  the  "plaintiffs,"  and,  by  waiving 
proof  as  to  the  character  of  H.  Diederichsen  &  Co.,  it  ad- 
mitted that  it  is  a  German  firm  or  company.  If  it  desired 
an  averment  of  the  names  of  the  persons,  other  than  H. 
Diederichsen,  who  compose  such  firm  or  company,  the  ob- 
jection should  have  been  made  by  demurrer,  on  the  ground 
of  defect  of  parties  plaintiff  or  want  of  capacity  to  sue.- 

It  is  next  argued  that  the  memorandum  signed  by  the 
defendant  upon  October  17,  1911,  does  not  constitute  the 
contract  or  agreement  between  the  parties.  The  conten- 
tion Is  directly  in  the  face  of  the  express  admissions  and 
averments  of  the  answer,  where  it  is  referred  to,  and  a 
copy  exhibited,  as  "a  copy  of  said  contract."  By  its  an- 
swer the  defendant  also  expressly  admits  that  by  the  terms 
and  conditions  of  the  memorandum  the  defendant  under- 
took to  ship  the  flour  "by  a  steamer  sailing  from  any  of 
said  ports  (the  ports  already  named)  during  the  month  of 
February,  1912."  The  only  defenses  pleaded  are  that  there 
is  a  provision  in  the  memorandum  exempting  the  defendant 
from  liability  in  case  of  strikes,  accidents,  or  other  delays 
unavoidable  or  beyond  the  control  of  the  defendant;  and 
that  the  flour  was  in  fact  delivered  at  the  wharf,  ready  for 
shipment  and  a  bill  of  lading  covering  the  same  was  is- 
sued, during  the  month  of  February,  1912. 

We  come  now  to  the  two  general  questions  which  were 
reserved  by  the  stipulation  and  upon  which  the  lower  court 
passed.  The  first  of  these  is  whether  or  not  there  was  a 
breach  of  the  contract.  The  substance  of  the  memorandum 
of  October  17th  is  substantially  as  admitted  and  set  forth 
in  the  answer.  By  its  terms,  the  flour  was  "to  be  shipped 
by  steamer  sailing  from  either  of  the  following  ports: 
Seattle,  Tacoma,  Portland,  San  Francisco,  Vancouver, 
during  the  month  of  February,  1912."  The  memorandum 
also  contains  this  clause:  "All  agreements  herein  con- 
tained or  implied  are  contingent  upon  strikes,  accidents, 
and  other  delays  unavoidable  or  beyond"  the  control  of  the 
defendant. 

As  a  matter  of  fact,  the  Harpagus,  the  steamer  upon 
which  the  shipment  was  made,  did  not  sail  in  the  month  of 


A.  M.  Gilman  &  Co.  v.  Cosgrove,  22  Cal.,  356. 


CONNELL  BROS.  V.  DIEDERICriSEN  &  CO.,  MAY  18,  1914.  337 

February.  The  flour  was  not  fully  loaded  until  March  3d, 
and  the  steamer  sailed  on  March  8th.  It  will  thus  be  seen 
that  there  was  a  breach  of  the  contract  in  respect  to  the 
date  of  the  shipment,  unless  the  delay  was  due  to  one  or 
more  of  the  excepted  causes  specified  in  the  clause  of  the 
contract  last  above  quoted.  As  a  general  rule  of  law  it  is 
well  settled  that 

In  the  contracts  of  merchants  time  is  of  the  essence.  The  time 
of  shipment  is  the  usual  and  convenient  means  of  fixing  the  probable 
time  of  arrival,  with  the  view^  to  providing  funds  to  pay  for  the 
goods  or  of  fulfilling  contracts  with  third  persons.^ 

It  follows  that,  unless  the  case  falls  within  one  of  fne 
exceptions  referred  to,  Diederichsen  &  Co.  had  the  right 
to  rescind.  The  defendant  urges  that  the  general  clause, 
"other  delays  unavoidable  or  beyond  its  control,"  is  to  be 
construed  as  including  all  delays  which,  for  any  cause,  were 
unavoidable  or  beyond  its  control,  while  the  plaintiff  con- 
tends that,  under  the  principle  of  ejusdem  generis,  it  is  to 
to  be  limited  to  causes  of  the  character  of  "strikes  and 
accidents."  If  we  assume,  without  deciding,  that  its  posi- 
tion is  well  taken,  in  what  light  does  the  defendant  stand? 
By  the  exercise  of  reasonable  diligence,  could  it  have 
avoided  the  delay?  It  was  well  known  to  both  parties, 
when  the  agreement  was  entered  into,  that  there  was  no 
regular  line  of  transportation  between  Tacoma  or  any  other 
one  of  the  specified  ports  and  Chefoo.  It  was  doubtless 
contemplated  that  a  vessel  would  be  chartered  to  carry  the 
cargo  and  such  was  the  practical  construction  placed  upon 
the  agreement  by  the  defendant  itself,  for,  as  we  shall  see, 
it  depended  upon  that  means  of  transportation  and  under- 
took to  charter  a  vessel  for  the  purpose.  To  say  the  least, 
therefore,  it  was  its  duty  to  use  reasonable  diligence  to 
provide  suitable  means  of  transportation  within  the  spec- 
ified time.  While  the  contract  was  entered  into  on  Oc- 
tober 17,  1911,  and  the  shipment  was  to  be  made  during 
the  following  February,  apparently  no  effort  was  made 
to  charter  a  vessel  until  December  and  no  serious  effort 


'Norrington  v.  Wright,  115  U.  S.  188,  6  Sup.  Ct.  12,  29  L.  ed.  366; 
Cleveland  Rolling  Mill  v.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882,  30  L. 
ed.  920;  Mechem  on  Sales,  Vol.  1,  par.  746. 

14008  O.  W. 22 


338  I  EXTRATERRITORIAL  CASES. 

until  after  the  middle  of  that  month.  At  that  time,  thru 
regular  shipping  channels,  the  defendant  arranged  for  the 
charter  of  the  Indien,  a  ship  which  was  then  in  the  South 
Atlantic  waters,  and  which  was  reported  to  be  due  in  San 
Francisco  the  middle  or  later  part  of  January.  By  letter 
dated  December  30th,  the  agents  for  the  Indien  advised 
the  defendant  as  follows: 

"The  steamer  is  expected  to  have  left  Buenos  Ayres  to-day  for 
San  Francisco,  via  Coronal,  and  eventually  a  nitrate  port,  and  we 
expect  her  discharge  at  San  Francisco  about  the  15th/20th  February." 

It  will  thus  be  seen  that,  if  we  make  a  reasonable  allow- 
ance for  the  time  required  for  the  vessel  to  reach  Tacoma 
from  San  Francisco,  the  margin  for  loading  and  sailing 
in  the  month  of  February  was  very  narrow  and,  upon  the 
whole,  we  agree  with  the  lower  court  in  holding 

"That  there  was  not  such  a  factor  of  safety  as  would  have  been 
insisted  upon  by  a  prudent  business  man  who  stood  to  commit  a 
serious  breach  of  contract  in  the  event  of  the  failure  of  the  ship  to 
reach  Tacoma  and  load  and  sail  during  the  month." 

It  is  true  that  apparently  the  letter  of  December  30th 
did  not  reach  the  defendant  until  about  the  middle  of 
January  but  the  cables  were  available  to  it  and  in  so 
important  a  transaction  it  is  thought  that  it  should  either 
have  fully  protected  its  contract  with  the  plaintiff  by  ap- 
propriate guaranties  in  the  charter  party,  or,  if  that  was 
impracticable,  it  should  have  kept  itself  advised  of  the 
whereabouts  of  the  Indien.  And,  when  it  became  apparent 
that  her  arrival  in  time  to  receive  the  cargo  in  February 
was  doubtful,  it  should  have  sought  another  vessel.  As  a 
matter  of  fact,  it  waited  until  almost  the  1st  of  February 
before  abandoning  the  Indien,  at  which  late  date  it  may 
be  conceded  there  was  no  ship  more  available  than  the 
Harpagus.  But  diligence  at  this  late  hour  cannot  be  re- 
garded as  excusing  or  expiating  the  earlier  negligence.  The 
record  contains  no  direct  or  satisfactory  proof  of  any 
accident  to  which  the  delay  can  be  reasonably  attributed. 
There  is  hearsay  evidence  to  the  effect  that  the  Indien  was 
detained  a  short  time  at  Buenos  Ayres  for  repairs  but  to 
relieve  the  defendant  from  liability  upon  such  a  showing 


CONNELL  BROS.  V.  DIEDERICHSEN  &  CO.,  MAY  18,  1914.  339 

would  be  to  trifle  with  an  important  obligation  of  the 
contract. 

It  is  next  contended  that  the  default  was  waived.  The 
facts  upon  which  this  defense  is  based,  briefly  stated,  are: 
Thru  a  bank  at  Shanghai,  the  plaintiff  established  a  credit 
with  the  Wells  Fargo  Nevada  Bank  at  San  Francisco  for 
the  payment  of  the  purchase  price  of  the  flour.  Defendant 
was  thereupon  advised  that  upon  presentation  to  the  Seattle 
National  Bank,  at  Seattle,  of  the  invoice,  policy  of  marine 
insurance,  and  the  bill  of  lading,  properly  indorsed,  its 
drafts  upon  the  plaintiff  would  be  paid.  Upon  February 
28th  the  defendant  presented  to  the  Seattle  bank  the 
requisite  papers  and  received  credit  for  the  full  amount. 
At  the  time  apparently  both  parties  were  under  the  im- 
pression that  the  flour  had  been  actually  shipped,  whereas 
the  fact  was  that  it  was  still  on  the  wharf.  On  April  8th, 
eight  days  before  the  arrival  of  the  Harpagus  at  Chefoo, 
the  plaintiffs  cabled  to  the  defendant  that  they  had  learned 
of  the  delay  in  shipment;  that  their  buyers  would  refuse 
to  receive  the  goods;  and  that  therefore  they  would  hold 
defendant  responsible  for  nonperformance. 

Even  were  it  assumed  that  the  Seattle  bank  had  the  au- 
thority to  waive  the  provision  of  the  contract,  which  we  do 
not  decide,  it  is  manifest  that  there  was  no  intent  to  make 
the  waiver,  and  the  facts  are  insuflftcient  to  constitute  an  es- 
toppel. The  bank  paid  the  money  without  knowledge  that 
the  flour  had  not  been  loaded ;  nor  did  it  act  negligently 
in  proceeding  upon  such  an  assumption.  Surely,  if  the 
defendant  inferred  from  the  delivery  of  the  bill  of  lading 
that  the  flour  had  been  loaded,  the  bank  may  be  excused 
for  so  doing.  Primarily  it  was  the  duty  of  the  defendant 
to  see  that  the  Harpagus  sailed  before  the  1st  of  March, 
and  of  this  obligation  it  is  not  to  be  relieved  merely  because 
it  did  not  intentionally  deceive  or  mislead  the  bank. 

Upon  discovering  the  error,  the  plaintiff  acted  with 
reasonable  promptness  in  giving  notice  of  rescission.  The 
defendant  having  thereupon  declined  to  recognize  its  re- 
sponsibility, it  was  the  right  of  the  plaintiff  to  receive  the 
cargo,  sell  it  at  the  highest  obtainable  price,  and  credit  the 
proceeds  thereof  upon  the  purchase  price  paid  to  the  de- 


340  I  EXTRATERRITORIAL  CASES. 

fendant,  after  making  proper  deductions  for  the  necessary 
expenses  of  handling,  storage,  interest,  etc.  Upon  an  ac- 
counting the  lower  court  found  that  the  proceeds,  when  so 
credited,  were  insufficient  to  cover  the  purchase  price,  to- 
gether with  legal  interest,  and  accordingly  gave  judgment 
for  the  deficit.'  The  rule  adopted  was  correct  and  it  is 
therefore  unnecessary  to  consider  evidence  touching  the 
relative  prices  of  flour  at  Chefoo  at  different  times  and  the 
rates  of  exchange.  Such  evidence  is  relevant  only  to  a 
measure  of  damages  which  the  lower  court  properly  rejected. 
We  find  no  substantial  error  in  the  record,  and  the  judg- 
ment '  will  therefore  be 

AFFIRMED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Hans  &  Clara  Bahlke,  Plaintiffs,  v.  James  H.  Brown, 

Defendant. 

[Civil  action  No.  112;  filed  June  6,  1914.] 

SYLLABUS. 
(By   the   Court.) 

1.  NEW  TRIAL:   ERROR  OF  LAW  is  a  sufficient  ground  for  a  new  trial 

under  sec.  43  of  the  Consular  Court  Regulations. 

2.  FOREIGN  LAWS:   JUDICIAL  NOTICE  will  not  be  taken  of  the  law  of 

a  foreign  jurisdiction.     In  the  absence  of  proof  it  "is  presumed 
to  be  the  same  as  the  common  law  of  the  forum." 

3.  AGENCY:    AUTHORITY.     An  agent  cannot  generally  bind   his   prin- 

cipal to  a  longer  lease  or  to  other  obligations  than  are  expressly 
authorized. 

4.  Id.  :   Id.     Ratification  by  an  agent  of  an  unauthorized  act  requires 

express  authority. 

ON   MOTION  FOR  NEW  TRIAL. 

Mr.  Judson  A.  Crane  (with  whom  appeared  the  German 
Consul  at  Tientsin),  for  plaintiffs. 
Messrs.  Allen  &  Lucker,  for  defendant. 

LOBINGIER,  J.: 

This  is  an  application  by  plaintiffs  for  a  new  trial,  pur- 
porting to  be  made  under  both  Sections  42  and  43  of  the 

'  Story  on  Sales,  par.  409.  "  See  ante,  p.  304. 


BAHLKE  V.  BROWN,  JUNE  6,   1914.  341 

Consular  Couit  Regulations  for  China,  which,  by  the  act 
establishing  this  court  are  continued  in  force  "so  far  as 
practicable."  '  As  the  first  named  section  requires  "proof 
of  the  perjury  of  any  important  witness  of  the  prevailing 
party  upon  a  material  point,  affecting  the  decision,"  arid 
as  no  such  proof  is  offered  or  suggested,  that  section  need 
not  further  be  considered. 

Section  43  authorizes  the  granting  of  a  new  trial  "where 
justice  manifestly  requires  it;  *  *  *  with  concur- 
rence of  the  Minister."  It  is  clear  that  if  the  plaintiffs 
have  any  grounds  for  the  order  sought  it  must  be  under 
this  latter  section  and,  as  the  Minister's  judicial  functions 
in  this  regard  have  been  transferred  to  this  Court,-  we  are 
accordingly  invited  to  enter  upon  the  general  inquiry  as 
whether  "justice  manifestly  requires"  a  new  trial  in  this 
case. 

The  precise  point  raised  and  urged  by  plaintiff's  counsel 
is,  however,  that  the  trial  judge  (our  predecessor)  com- 
mitted an  error  of  law  in  holding,  in  effect,  that  regardless 
of  whether  or  not  the  witness  Kracke  had  authority  under 
and  by  virtue  of  the  instrument  Exhibit  C  to  execute  a 
twenty  year  lease  which  would  bind  defendant,  the  contract 
in  any  event  was  vitiated  by  a  private  agreement  between 
said  Kracke  and  the  plaintiffs  by  which  the  latter  paid 
Kracke  the  sum  of  six  hundred  dollars  for  the  execution 
of  such  a  lease.  This  was  in  effect  a  finding  of  law  by 
the  trial  judge  and  which  was  assumed  by  him  to  be  the 
pivotal  point  in  the  case  tho  the  certified  copy  of  the  Clerk's 
minutes  discloses  that  judgment  was  given  generally  for 
the  defendant. 

We  cannot  agree  with  counsel  resisting  the  application 
that  error  of  law  may  not  be  a  ground  for  a  new  trial 
under  Section  43  above  referred  to.  The  language  of  that 
section  seems  to  us  broad  enough  to  include  any  error  on 
the  part  of  the  trial  court  producing  a  result  which  "justice 
manifestly  requires"  a  new  trial  to  correct.  Moreover,  it 
is  admitted  by  defendant's  counsel  that  said  Section  43 
was  intended  to  take  the  place  of  the  general  rules  and 

'  34  U.  S.  Stats,  at  Large,  Pt.  I,  814,  sec.  5. 

^  See  Opinion,  State  Department  to  the  Minister,  Mar.  2,  1917.     Ed. 


342  I  EXTRATERRITORIAL  CASES. 

statutes  which  authorize  the  granting  of  new  trials  by 
other  courts  and  these  almost  invariably,  we  think,  provide 
among  other  grounds  that  "the  judgment  is  contrary  to 
law".-*  It  is  true  that  an  error  of  law  is  a  ground  for 
appeal  but  the  power  to  grant  a  new  trial  is  intended  to 
obviate  the  necessity  of  an  appeal  where  the  grounds  are 
sufficient  and,  moreover,  the  two  remedies  are  by  no  means 
exclusive. 

But  while  we  are  of  the  opinion  that  an  error  of  law, 
when  properly  established,  furnishes  sufficient  ground  for 
a  new  trial  under  Section  43,  it  is  clear  that  such  error 
must  appear  from  the  evidence.  Now  in  the  present  case 
it  is  not  claimed  that  the  trial  judge  committed  an  error 
of  law  according  to  American  jurisprudence  in  holding  as 
he  did  that  the  transaction  was  vitiated  by  the  payment  of 
the  six  hundred  dollars.  Indeed,  the  proposition  seems 
well  supported  by  the  authorities  that  such  conduct  upon 
the  part  of  the  agent  gives  the  principal  the  option  to 
repudiate  the  transaction.* 

Plaintiff's  contention  on  this  point  is  merely  that  such 
a  transaction  was  valid  under  German  law  and  that  as 
plaintiffs  and  Kracke  were  all  Germans  that  law  alone 
should  have  been  applied.  But  an  insurmountable  objec- 
tion to  this  argument  is  found  in  the  fact  that  no  evidence 
has  been  presented  in  support  of  plaintiff's  contention  as 
to  what  the  German  law  on  this  subject  really  is.  It  is 
well  settled  that  no  court  is  entitled  to  take  judicial  notice 
of  foreign  law,^  and  no  authorities  have  been  produced 
or  suggested  to  the  effect  that  this  rule  is  inapplicable 
merely  because  the  court  which  applies  it  is  located  in  an 
extraterritorial  jurisdiction  along  with  other  courts  which 
apply  the  laws  of  their  respective  sovereignties.  The  rule 
is  well  settled  that  in  the  absence  of  proof  to  the  contrary 
the  law  of  a  foreign  jurisdiction  "is  presumed  to  be  the 
same  as  the  common  law  of  the  forum"."     In  the  face  of 

=•  29  Cyc,  818. 
*31  Cyc,  1572  et  seq. 

'Dainese  v.  Hale,  ante,  p.  39;  16  Cyc,  885   (71).     See  the  article 
"Foreign  Laws,"  Am.  &  Eng.  Encyc.  of  Law  (2nd  ed.),  XII,  1060-62. 
"Id.,  1084  et  seq. 


BAHLKE  V.  BROWN,  JUNE   6,   1914.  343 

these  established  rules  we  are  at  a  loss  to  determine  how 
we  could  properly  hold  that  the  trial  judge  committed  an 
error  of  law  in  applying  a  rule  which,  it  is  not  disputed, 
was  correct  according  to  American  jurisprudence,  and  con- 
cerning the  German  law  of  which  no  proof  has  been  offered 
either  at  the  original  trial  or  upon  this  hearing. 

It  was,  indeed,  suggested  by  plaintiff's  counsel  that  the 
error  complained  of  was  made  in  the  judgment  itself  and 
that  the  same  necessarily  could  not  be  known  until  it  was 
announced.  But  it  was  also  conceded  that  the  Court's 
views  on  this  point  were  indicated  early  in  the  trial  and  it 
must  have  been  clear  that  this  point  was  raised  or  was  at 
least  being  considered  in  the  case  and  if  the  plaintiffs  de- 
sired to  have  it  determined  according  to  German  law  instead 
of  American  law  they  would  seem  to  have  had  sufficient 
warning  to  provide  a  basis  for  such  determination.  More- 
over, there  was  not  only  an  entire  absence  of  such  evidence 
at  the  trial  but  none  has  been  produced  upon  this  hearing 
so  that  we  are  entirely  without  a  legal  basis  for  any  finding 
as  to  what  the  German  law  is  upon  this  point.  It  was 
also  suggested  that  the  difficulties  of  proving  the  German 
law  were  very  great  but  in  view  of  the  fact  that  such 
proof  may  be  made  by  calling  in  witnesses  ^  as  well  as  by 
introducing  books  of  authority,  and  of  the  further  fact 
that  one  of  the  plaintiff's  representatives  at  this  hearing 
is  a  German  advocate  it  would  hardly  seem  that  such  diffi- 
culties would  be  formidable. 

II. 

The  foregoing  considerations  would  and,  we  think,  should 
be  sufficient  to  dispose  of  the  application;  but  in  view 
of  the  arguments  presented  by  the  distinguished  Consul 
for  the  German  Empire  in  behalf  of  the  plaintiffs,  in  which 
emphasis  was  laid  upon  the  equitable  features  of  the  case 
we  have  concluded  to  enter  upon  an  examination  of  the 
evidence  to  determine  whether  from  that  standpoint  the 
judgment  really  should  have  been  different  than  it  was. 

In  their  amended  petition  plaintiffs  allege  that  on  No- 

7  Id.,  886  et  seq. 


344  I  EXTRATERRITORIAL  CASES. 

vember  3,  1912,  they  "were  lawfully  entitled  to  the  posses- 
sion of"  the  property  in  question  by  virtue  of 

"a  lease  executed  at  Tientsin,  June  28,  1910,  by  one  W.  Kracke  as 
agent  thereto  duly  authorized  by  the  defendant,  J.  H.  Brown;  that 
by  said  instrument  the  above  described  land  was  leased  to  the  plain- 
tiff Hans  Bahlke  for  a  period  of  twenty  years  from  the  first  day  of 
July,   1910", 

and  that 

"the  defendant  J.  H.  Brown  on  or  about  said  third  day  of  November 
1912,  unlawfully  and  without  right  entered  upon  said  premises  and 
did  personally  and  by  his  agents  and  servants  occupy  said  premises 
under  a  false  claim  to  the  right  of  possession  thereof,  and  denied 
and  refused  to  recognize  the  right  of  the  plaintiffs  to  the  possession 
thereof,  and  prevented  plaintiffs  from  occupying  said  premises  as  he 
still  does." 

The  prayer  is  that  possession  be  restored  to  plaintiffs, 
that  defendant  be  restrained  from  further  interference 
therewith  and  for  damages  and  costs. 

The  answer  to  the  foregoing  denies  that  plaintiffs  were 
ever  entitled  to  the  possession  and  avers  inter  alia  that  the 
alleged  lease  is  void  because  executed  without  authority 
and  further 

"because  the  said  document  was  procured  by  the  fraud  of  the  plain- 
tiff Hans  Bahlke  in  knowingly  inducing  the  aforesaid  W.  Kracke 
for  the  personal  advantage  of  him  the  said  Kracke  to  lease  to  the 
plaintiff  on  terms  and  conditions  far  less  favorable  than  might  have 
been  obtained  from  other  persons  at  the  time," 

It  is  also  alleged  that  defendant's  wife  is  owner  of  the 
premises. 

The  replication  sets  up  that  the  lease  was  authorized  by 
defendant's  wife. 

There  is  in  the  files  a  letter  from  Kracke  to  the  leading 
plaintiff  which  contains  the  following: 

"Regarding  the  presence  of  Mrs.  Brown  in  the  winter  of  1910,  I 
informed  her  of  the  conditions  of  the  lease;  she  then  asked  if  I  had 
authority  thereto,  whereupon  I  referred  to  my  power  of  attorney; 
she  did  not  see  the  latter  however." 

This  would  hardly  support  the  averment  that  Mrs.  Brown 
authorized  the  lease;  but  the  question  cannot  be  adjudicated 


BAHLKE  V.  BROWN,  JUNE   6,   1914.  345 

in  this  action  for  the  reason  that  Mrs.  Brown  is  not  made 
a  party  and  the  question  whether  she  authorized  or  ratified 
the  lease  of  the  property  so  as  to  bind  herself  cannot  be 
determined  until  she  has  had  her  day  in  court. 

As  to  the  defendant  the  authority  to  execute  the  lease 
appears  to  rest  primarily  upon  the  instrument  authorizing 
him 

"to  act  for  me  and  in  my  stead  in  any  business  transactions  that  may 
arise  in  reference  to  my  real  property  situated  in  Tientsin  and 
Peking,  China,  and  to  evict  anyone  from  any  premises  belonging  to 
me  when  rent  is  in  arrears." 

It  will  be  seen  that  no  specific  power  is  given  to  sell 
the  land  or  even  to  lease  it  and  the  defendant's  express 
reason  for  executing  the  instrument  is  that  he  had  had 
difficulty  in  collecting  rents  and  dealing  with  tenants  and 
that  the  instrument  was  intended  to  meet  this  situation 
alone.  This  explanation  seems  to  be  confirmed  by  the  last 
clause  of  the  above  quotation,  by  Kracke's  letter  referred  to 
where  he  says, 

"I  had  Mr.  Brown  send  me  this  power  of  attorney  some  time  ago, 
because  there  were  some  tenants  who  did  not  W'ant  to  pay,  and  where 
leases  had  expired  they  claimed  rights  to  which  I  did  not  agree" 

and  by  the  following  statement  in  his  deposition; 

"A  tenant  named  Hempel  on-.e  doubted  my  authority  to  collect 
rent.  Therefore  I  begged  Brown  to  let  me  have  a  written  power  of 
attorney  which  I  received.  I  stated  the  reason  why  I  wanted  a  power 
of  attorney  in  the  letter  to  Brown.  It  is  likely  that  I  mentioned  in 
the  letter  that  I  wanted  to  evict  the  tenant." 

Yet  notwithstanding  such  was  the  purpose  Kracke  assumed 
to  execute  a  lease  for  twenty  years  and  which  was  to  have 

"entire  validity  even  when  Mr.  Brown  sells  the  land  or  when  it 
by  reason  of  his  death  passes  to  his  heirs.  Moreover  Mr.  Bahlke  has 
the  option  of  purchase,  as  well  as,  in  case  Mr.  Brown  is  not  willing 
to  sell,  the  first  right  of  leasing." 

It  being  conceded  that  all  this  was  done  while  defendant  was 
absent  from  the  country  and  without  his  knowledge  and 
that  plaintiff  paid  $600  to  the  agent  to  bring  it  about,  it 
would  hardly  seem  that  the  equities  of  the  case  are  with 
plaintiffs.     The  general   rule,   even   where   an   agent   has 


346  I  EXTRATERRITORIAL  CASES. 

authority,  is  that  he  cannot  bind  his  principal  for  a  longer 
lease  than  that  authorized  **  nor  to  other  agreements  or 
obligations.'-' 

As  to  the  claim  that  Mrs.  Brown  ratified  an  ultra  vires 
lease  so  as  to  bind  defendant  it  is  to  be  observed  first  that 
an  agent  cannot  generally 

"ratify  an  unauthorized  act  performed  by  a  third  person  on  behalf 
of  his  principal,  unless  he  has  authority  to  ratify  it"  ^^ 

and  no  evidence  appears  to  have  been  produced  that  such 
authority  was  ever  conferred  upon  Mrs.  Brown  nor  is  there 
evidence  that  she  even  communicated  to  the  defendant  the 
results  of  her  conversation  with  Kracke.  It  may  be  na- 
tural to  surmise  that  she  did,  but  we  cannot  assume  it 
without  evidence.  As  to  the  alleged  acceptance  of  benefits 
by  defendant  in  the  form  of  rentals  we  cannot  find  where 
it  is  shown  that  this  was  done  with  notice  that  they  were 
derived  from  the  unauthorized  lease. 

"The  mere  fact  that  the  principal  has  received  or  enjoyed  the 
benefits  of  the  unauthorized  act  will  not  amount  to  a  ratification  if 
he  did  so  in  ignorance  of  the  facts;  nor  will  his  retention  of  such 
benefits  after  knowledge  of  the  facts  amount  to  a  ratification  if  at  the 
time  he  acquired  such  knowledge  and  without  his  fault  conditions 
are  such  that  he  cannot  be  placed  in  statu  quo  or  repudiate  the  entire 
transaction  without  loss."  " 

Something  was  said  in  the  argument  regarding  defend- 
ant's reputation  and  if  the  question  of  his  credibility  were 
before  us  that  inquiry  might  be  pertinent;  but  we  are  con- 
sidering here  not  his  own  testimony  but  principally  that 
of  others  and  his  reputation  would  not  affect  his  legal  rights. 

The  question  of  plaintifll's'  right  to  reimbursement  for 
extensive  improvements  placed  on  the  premises  in  good 
faith  and  in  reliance  on  the  lease  in  question  does  not  arise 
under  the  pleadings  and  hence  cannot  be  adjudicated  here. 
But  it  is  a  question  of  importance  to  plaintiffs  and  there 

'Borderre  v.  Den,  106  Cal.,  594,  39  Pac.  946;  Larkin  v.  Radosta, 
119  N.  Y.  App.  Div.,  515;  La  Point  v.  Scott,  36  Vt.,  603. 

"Durkee  v.  Carr,  38  Or.,  189,  63  Pac.  117;  Schumacher  v.  Brewing 
Co.,  78  Minn.,  50,  80  N.  W.,  838. 

"31  Cyc,  1251. 

"Id.,  1269. 


UNITED  STATES  V.  DONOHOE,  JUNE  6,  1914.  347 

is  no  disposition  to  prevent  its  consideration  or  to  deny 
plaintiffs  any  relief  to  which  they  may  be  entitled  on  that 
ground.  Not  having  presented  it  in  this  case,  however, 
plaintiffs  must  be  relegated  to  a  separate  action  for  such 
relief  and  for  the  reasons  above  mentioned  a  motion  for 
a  new  trial  must  be  denied  without  prejudice  to  plaintiffs' 
right  to  commence  a  new  action  to  recover  for  such  im- 
provements. 

IT  IS  so  ORDERED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Seeley  T.  Donohoe. 

[Criminal   cause   No.   91;   filed  June   6,   1914.] 

SYLLABUS. 
(By   the   Court.) 

LAWS:    The   postal   legislation   of    China    is    not   enforcible    against 
American  citizens  by  criminal  prosecution. 

Joseph  W.  Rice,  Esq.,  for  the  motion. 

Frank  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  contra. 

LOBINGIER,  J.: 

This  is  a  motion  to  quash  an  information  charging  the 
fraudulent  use  of  the  mails  by  depositing  certain  matter 
"in  a  postal  agency  of  the  Republic  of  China  *  *  * 
against  the  treaties  between  the  United  States  and  China 
and  against  the  laws  of  the  United  States." 

The  treaties  primarily  involved  are  those  of  1844  and 
1858  which  provide  for  the  punishment  of  "any  crime"  or 
"any  other  improper  act  in  China  *  *  *  according  to 
the  laws  of  the  United  States."  There  is  no  treaty  provi- 
sion for  the  punishment  of  an  act  which  is  improper  under 
the  laws  of  China  alone  for  it  was,  and  has  always  been, 
the  evident  purpose  of  each  nation  to  punish  its  nationals 
according  to  its  own  laws  and  not  to  attempt  to  enforce 
the  laws  of  the  other. 

Nothing  inconsistent  with  this  view  has  been  announced 
by  the  Court  of  Appeals  or  by  this  Court,  each  of  which  is 


348  I  EXTRATERRITORIAL  CASES. 

committed  .to  the  doctrine  that  a  "law  of  the  United  States" 
might  be  applied  here  tho  originally  enacted  for  some  other 
jurisdiction;'  but  it  must  in  all  cases  be  a  "law  of  the 
United  States"  and  not  of  some  other  sovereignty. 

The  only  law  specified  in  the  information  is  one  which 
forbids  the  deposit  of  certain  matter 

"in  any  post-oflfice,  or  station  thereof,  or  street  or  other  letter  box 
of  the  United  States,  or  authorized  depository  for  mail  matter,  to  be 
sent  or  delivered  by  the  post-office  establishment  of  the  United 
States." ' 

But  it  will  be  seen  that  the  information  charges  not  a 
deposit  of  matter  in  such  a  postal  agency,  but  in  one  of 
the  Republic  of  China  while  such  an  act  is  not  within  the 
terms  of  the  statute  above  quoted.  There  are  numerous 
decisions  to  the  effect  that  this  statute  is  not  infringed 
without  an  actual  use  of  the  United  States  mails.^ 

In  the  District  Attorney's  brief  reference  is  made  to  the 
universal  postal  convention  of  June  15,  1897,  to  which  the 
United  States  was  a  signatory  power.  This  convention 
enumerates  various  articles  which  are  nonmailable  ^  but 
none  of  the  matter  specified  in  the  information  is  included, 
and  besides  the  remedy  provided  for  the  violation  of  this 
clause  is  exclusion  from  the  mails;  there  is  no  warrant  in 
the  convention  itself  for  a  criminal  prosecution.  And  this 
would  seem  to  suggest  a  complete  remedy  in  the  case  at 
bar.  If  any  American  citizen  is  using  the  mails  of  the 
Republic  of  China  for  an  improper  purpose  that  govern- 
ment need  only  refuse  him  the  use  of  its  mails  and  the 
purpose  is  accomplished.  Doubtless  the  simplicity  and 
efficacy  of  such  a  remedy  explains  why  the  convention  above 
referred  to  contains  no  provision  for  enforcing  its  terms 
by  a  criminal  prosecution  on  the  part  of  any  signatory 
power. 

There  being  no  warrant  in  either  Act  of  Congress  or 


'U.  S.  V.  Biddle,  ante,  p.  120;  U.  S.  v.  Allen,  ayite,  p.  308. 

-Federal  Penal  Code  (35  U.  S.  Stats,  at  Large,  sess.  II,  Ch.  321) 
sec.  215. 

''Stokes  V.  U.  S.,  157  U.  S.  187,  39  L.  ed.  667;  Brown  v.  U.  S., 
143  Fed.  60;  U.  S.  v.  McCrory,  175  Fed.  802. 

'30  U.  S.  Stats,  at  Large,  p.  1641,  Article  16. 


UNITED  STATES  V.  DONOHOE,  JUNE  6,  1914.  349 

treaty  for  a  proceeding  in  this  Court  to  enforce  the  postal 
laws  of  China  or  to  punish  an  -improper  use  of  its  mails, 
we  have  no  alternative  but  to  sustain  the  motion  to  quash. 
It  is  so  ordered  and  unless  the  information  is  amended, 
so  as  to  charge  an  offense,  within  five  days  the  proceeding 
will  stand  dismissed  and  the  cash  bond  deposited  by  defend- 
ant will  be  returned  to  him.^ 


°  In  U.  S.  V.  Armstrong,  Criminal  Proc.  No.  92,  U.  S.  Court  for 
China,  June  13,  1914,  the  sams  Judge  said: 

This  is  a  demurrer  to  an  information  charging  the  "deposit  of  li- 
belous matter  and  envelopes  in  the  mails."  The  information  does  not 
specify  what  "mails"  were  so  used.  True  the  act  is  charged  to  have 
been  committed  "against  the  laws  of  the  United  States,"  but  a  similar 
averment  v/as  made  in  the  information  in  U.  S.  v.  Donohoe,  No.  91, 
where  it  appears  that  the  mails  in  question  were  those  of  the  Re- 
public of  China.  We  have  held  in  that  case  that  this  Court  has  no 
jurisdiction  to  punish  a  misuse  of  the  Chinese  mails  and  that  the 
statute  specified  applies  only  to  offenses  against  the  United  States 
mails.  Since,  therefore,  the  information  does  not  specifically  allege 
that  the  matter  in  question  was  deposited  in  the  United  States  mails, 
we  cannot  assume  that  it  was,  nor  does  the  demurrer  so  admit,  for 
that  only  is  admitted  on  demurrer  which  is  well  pleaded.  Besides 
the  defendant  is  entitled  to  be  apprised  of  the  specific  offense  charged 
and  so  long  as  the  information  leaves  him  in  the  dark  as  to  whether 
he  is  charged  with  misusing  the  United  States  mails,  or  the  Chinese 
mails,  it  is  bad  for  uncertainty. 

The  demurrer  must  therefore  be  sustained  and  unless  the  informa- 
tion is  amended  within  five  days  so  as  to  charge  an  offense  against 
the  United  States  mails,  the  information  will  stand  dismissed  and 
defendant's  bond  discharged. 

And  U.  S.  v.  Low  Ping  Leung,  U.  S.  Court  for  China,  March  29, 
1919,  Cause  No.  745,  where  the  law  of  China  was  again  invoked,  the 
Court,   by  the   same  Judge,  observed: 

The  accused  pleads  guilty  to  the  offense  of  importing  ten  bottles 
of  morphine  which  the  testimony  at  the  preliminary  hearing  shows 
to  have  contained  about  one  ounce.  The  District  Attorney  admits 
a  doubt  as  to  the  applicability  of  the  Act  of  Feb.  23,  1887  (24  U.  S. 
Stats,  at  Large,  Ch.  210,  p.  409;  Rev.  Stats.,  Suppl.  Ch.  210),  which 
does  not  mention  morphine,  or  of  the  Act  of  Jan.  17,  1914  (38  U.  S. 
Stats,  at  Large,  Sess.  II,  Pt.  I,  Ch.  9,  p.  275),  which  has  special  pro- 
visions, not  applicable  to  this  cause,  for  extraterritorial  jurisdictions. 

In  view  of  this  and  of  the  fact  that  the  accused  has  already  served 
eighteen  days  in  confinement  awaiting  trial,  part  of  the  delay  being 
due  to  the  difficulty  of  obtaining  counsel  to  act  upon  assignment  by 
the  court,  we  are  of  the  opinion  that  he  should  be  released  and  it  is 
accordingly  so  ordered. 


350  I  EXTRATERRITORIAL  CASES. 

It  appearing  that  the  morphine  in  question  was  all  seized  by  the 
Chinese  Customs  Officials  and  has  been  retained  by  them  without  hav- 
ing come  into  the  possession  of  any  American  authority  no  order  of 
confiscation  is  necessary. 

Shanghai  Municipal  Ordinances.  "It  appears  that  by  the  municipal 
charter  of  Shanghai  every  foreigner  owning  land  of  the  value  of  at 
least  500  taels,  or  occupying  a  house  of  an  assessed  rental  value  of 
not  less  than  250  taels,  is  a  member  of  what  is  called  the  'municipal 
body'  and  is  entitled  to  vote  at  all  municipal  elections.  The  'munic- 
ipal body'  elect,  at  stated  times,  a  municipal  council,  consisting  of 
not  more  than  nine  members,  who  have  the  power  to  make  regulations 
for  the  government  of  the  municipality,  subject  to  the  approval  of 
the  consuls  and  foreign  ministers,  or  a  majority  of  them,  and  of  the 
rate  payers  at  a  special  meeting. 

"In  the  proposed  revision  it  is  insisted  by  the  municipality,  in 
respect  to  any  by-law  that  may  hereafter  be  passed,  that  'any  such 
additional  or  substituted  by-law,  or  alteration  or  repeal  of  a  by-law, 
shall  be  binding  when  approved  by  the  treaty  consuls  and  the  intend- 
ant  of  circuit,  or  by  a  majority  of  them;  but  the  representatives  of 
the  treaty  powers  may,  at  any  time  within  six  months  of  the  date  of 
such  approval,  annul  any  such  additional  or  substituted  by-law,  or 
alteration  or  repeal  of  a  by-law.'     *     *     * 

"The  ordinances  of  the  municipality  of  Shanghai,  altho  dependent 
for  their  operation  as  to  citizens  of  the  United  States  upon  the  ap- 
proval of  the  Minister  of  this  Government  in  China,  are  conceived 
to  present  in  one  aspect  a  different  question  from  that  of  the  power 
of  the  Minister  of  the  United  States  as  to  criminal  legislation.  The 
municipality  of  Shanghai  is  understood  to  have  been  organized  by 
the  voluntary  action  of  the  foreign  residents  (of  certain  nationalities), 
or  such  of  (those  residents)  as  were  owners  or  renters  of  land,  for 
the  purpose  of  exercising  such  local  powers  for  the  preservation  of 
the  order  and  morals  of  the  community  as  are  usually  enjoyed  by 
municipal  bodies.  In  the  United  States,  where  government  is  reduced 
to  a  legal  system,  these  powers  of  local  police  rest  on  charters  granted 
by  the  supreme  legislative  authority  oi  the  State;  but  it  is  not  dif- 
ficult to  conceive  of  a  case  in  which  a  community  outside  of  any 
general  system  of  law  might  organize  a  government  and  adopt  rules 
and  regulations  which  would  be  recognized  as  valid  on  the  ground 
of  the  right  of  self-preservation,  which  is  inherent  in  people  every- 
where. 

"In  this  light  may  be  regarded  the  municipal  ordinances  of  Shang- 
hai. The  foreign  settlement  not  being  subject  to  the  laws  of  China, 
and  the  legal  systems  of  the  respective  foreign  powers  represented 
there  being  not  only  dissimilar  inter  se,  but  insufficient  to  meet  the 
local  needs,  it  became  necessary  for  the  local  residents  interested  in 
the  preservation  of  peace  and  order  to  supply  the  deficiency. 

"American  citizens  residing  in  Shanghai  enjoy,  in  common  with 
other  persons  composing  the  foreign  settlement,  all  the  rights,  priv- 


REX  V.  LEE  KI-LUNG,  MARCH   13,   1919.  351 

ileges,  and  protection  which  the  municipal  government  affords;  and 
as  they  go  there  voluntarily,  and  presumptively  for  the  advancement 
of  their  personal  interests,  they  may  reasonably  be  held  to  observe 
such  police  regulations  as  are  not  inconsistent  with  their  rights  under 
the  laws  of  the  United  States.  It  is  true  that  this  reasoning  is  not 
conclusive  as  to  the  strict  legal  authority  of  the  consul-general  of 
the  United  States  to  enforce  such  regulations;  but,  taken  in  connec- 
tion with  the  fact  that  at  present  American  citizens  in  Shanghai  are 
not  subject  to  any  judicial  control  except  that  of  the  consul-general 
of  the  United  States,  it  affords  a  basis  upon  which  his  enforcement 
of  the  municipal  regulations  may  be  justified."  Secretary  Bayard 
to  Minister  Denby,  March  7,  1887,  MS.  Inst.  China,  IV,  244;  Moore, 
Int.  Law  Dig.,  II,  648-650. 

Rule  in  British  Courts.  In  Rex  v.  Lee  Ki-Lung,  H.  B.  M.  Supreme 
Court  for  China  and  Corea,  March  13,  1919,  [North  China  Herald 
(1919),  p.  732]  Sir  Haviland  de  Sausmarez  delivered  the  judgment 
of  the  court  as  follows: 

The  appellant  was  charged  under  article  70  (1),  (iii)  of  the 
China  Order  in  Council,  1904,  with  importing  into  China  goods,  the 
importation  whereof  into  China  is  prohibited  by  law.  He  was  con- 
victed and  sentenced  to  three  months'  imprisonment  with  hard  labor. 
The  goods  so  imported  were  about  21b.  of  opium.  The  law  which 
forbids  the  importation  of  opium  is  Chinese  law:  the  appellant  asks 
us  to  say  that  the  law  mentioned  in  the  Order  is  English  law  and 
that  he  ought  to  be  acquitted.  That  is  the  only  point  before  the 
Court  but  it  is  by  no  means  an  easy  one.  Mr.  Ward  has  been  good 
enough,  at  the  request  of  the  Court,  to  argue  the  case  for  the  ap- 
pellant and  we  are  much  obliged  to  him  for  his  help. 

Speaking  generally,  the  criminal  law  applied  to  British  subjects  by 
Article  35  of  the  Order  is  English  law  for  the  time  being;  where, 
then,  law  is  mentioned  without  any  qualification  it  is  to  be  presumed 
that  English  law  is  meant  unless  the  context  requires  otherwise. 
This  was  the  view  of  the  magistrate  in  an  earlier  case,  which  was 
not  brought  to  the  attention  of  the  magistrate  who  convicted  in  the 
present  case,  nor  was  the  point  before  us  argued  before  him. 

The  Article  says  that  if  a  British  subject  imports  goods  prohibited 
by  law  into  China  "he  shall  be  guilty  of  an  offense  against  this 
Order  and  on  conviction  shall  be  liable"  to  imprisonment  and  fine. 

Now,  if  English  law  is  meant,  the  provision  is  meaningless  for 
English  law  does  not  deal  with  the  import  of  goods  into  China:  the 
expression  must  therefore  refer  to  some  other  law  applicable  to 
British  subjects  in  China,  and  we  find  that  an  act  made  or  declared 
an  offense  by  the  Order  or  by  Regulations  made  under  it  may  be 
the  subject  of  criminal  proceedings.  The  importation  of  opium, 
tho  properly  the  subject  of  a  regulation,  has  not  been  made  so. 
If  then  it  is  punishable  as  an  offense  it  must  be  so  because  it  is 
made  so  by  this  article  of  the  Order,  The  only  possible  alternative 
law  to  that  of  England  is  that  of  China  but  that  construction  opens 


352  I   EXTRATERRITORIAL   CASES. 

the  difficulty  that  China  might  put  prohibitions  on  the  import  of 
certain  classes  of  goods  which  our  country  might  not  acquiesce  in 
so  far  as  it  concerned  her  own  subjects.  The  Crown  asks  the  Court 
to  say  that  "law"  means  a  law  of  China  concurred  in  by  Great 
Britain. 

The  article  is  in  a  group  headed  "Statutory  or  other  offences;" 
it  is  the  first  of  a  group  dealing  with  our  duties  to  China;   article 

71  deals  with  levying  war  against  the  Government  of  China;  article 

72  with  piracy,  tho  that  is  perhaps  more  general;  article  73  with 
the  breach  of  treaty  obligations,  and  so  on.  Article  70  deals  with 
the  revenue  laws,  the  first  two  sub-articles  deal  with  the  smuggling 
and  the  evasion  of  the  payment  of  duty  and  the  fourth  with  the 
protection  of  monopolies  established  by  law  (it  is  difficult  to  say 
that  this  is  not  the  same  kind  of  law  as  is  named  in  sub-article  3). 
On  the  face  of  them  these  are  laws  which  could  not  be  made  binding 
on  British  subjects  without  the  concurrence  of  His  Majesty's  Gov- 
ernment. The  sub-article  under  construction  does  not,  it  is  true, 
deal  with  revenue,  but  it  has  this  in  common  with  (1)  and  (ii), 
that  it  implies  an  evasion  of  the  customs  authorities.  Lastly  it 
will  be  noticed  on  a  perusal  of  the  treaties  that  the  articles  dealing 
with  the  prohibition  of  imports  and  exports  are  next  in  order  to 
those  dealing  with  import  and  export  subject  to  the  payment  of 
duty.  There  seems  to  us  no  difficulty  in  construing  "law"  as  used 
in  this  article  to  mean  Chinese  law,  so  long  as  it  is  clearly  under- 
stood that  that  law  has  the  concurrence  of  His  Majesty's  Govern- 
ment. The  difficulty  which  might  be  presented  by  the  impropriety 
of  applying  Chinese  punishments  to  British  subjects  is  removed  by 
the  fact  that  the  sanction  is  provided  by  the  article  itself  and  the 
conviction  is  for  an  offense  against  the  article.  We  would  only 
add  that  in  our  opinion  that  concurrence  must  be  expressed  in  some 
public  document. 

The  Cro\vn  Advocate  has  addressed  to  the  Court  a  very  interest- 
ing historical  argument  in  support  of  his  contention  that  the  import 
of  opium  is  prohibited  by  Chinese  law  and  that  that  law  has  been 
concurred  in  by  Great  Britain.  From  an  historical  note  prepared 
by  Dr.  Edkins  and  issued  by  the  statistical  department  of  the 
maritime  customs  in  1889,  it  would  appear  that  the  habit  of  opium 
smoking  has  been  slowly  growing  in  China  from  the  early  years 
of  the  eighteenth  century  and  that  towards  the  end  of  the  century 
the  habit  had  reached  Peking  and  became  so  general  that  public 
attention  was  called  to  it  in  government  documents.  It  was  also 
about  this  time  that  the  Canton  authorities  began  to  complain  of 
the  rapid  increase  in  the  trade  of  opium.  In  1800  there  was  an 
edict  issued  prohibiting  opium  being  brought  to  China  in  any  ship. 
The  ships  which  brought  it  were  British  and  Portuguese. 

It  seems  from  a  letter  presented  to  Parliament  in  1783  that  at 
that  time  "the  importation  of  opium  into  China  is  forbidden  on 
very   severe   penalties:    the    opium   on    seizure   is   burnt,   the   vessel 


REX  V.  LEE  KI-LUNG,  MAR.   13,   1919.  353 

in  which  it  is  brought  to  the  port  is  confiscated,  and  the  Chinese  in 
whose  possession  it  is  found  is  punishable  with  death.  *  *  =i=  That 
this  contraband  trade  has  hitherto  been  carried  on  without  incurring 
the  penalties  of  the  law  is  owing  to  the  excess  of  corruption  in  the 
executive   part  of  the   Chinese   Government." 

Between  1835  and  1840  a  set  of  very  severe  opium  laws  was 
enacted  which  continued  in  force  down  to  the  date  of  the  Foreign 
Treaties.  Amongst  them  is  a  provision  that  no  opium  is  to  be 
landed  whilst  the  cultivation  of  the  poppy  is  punishable  by  stran- 
gulation. There  seems  no  reason  to  think  that  these  laws  were 
observed  with  any  greater  attention  than  those  already  mentioned. 
Still  there  is  no  doubt  that,  whether  observed  or  not,  the  law  made 
the  import  of  opium  illegal  and  treated  the  use  of  it  as  criminal. 
This  continued  until  the  treaty  of  Tientsin,  made  in  1858,  when 
the  trade,  which  had  in  fact  for  so  long  been  carried  on,  was  recog- 
nized and  subjected  to  stricter  provisos.  The  penal  enactments  to 
which  we  have  referred  were  repealed  in  the  following  year. 

We  must  now  examine  the  treaties  in  order  to  ascertain  whether 
this  repeal  absolutely  put  an  end  to  the  prohibition  of  the  import 
of  opium  by  British  subjects,  the  contention  on  behalf  of  the  Crown 
being  that  the  restrictions  being  removed  and  the  import  of  opium 
being  again  forbidden  by  Chinese  law.  Great  Britain  must  be  taken  to 
have  concurred  in  the  law  by  which  China  excludes  opium  from  her 
dominions. 

In  the  annex  to  the  Treaty  of  Tientsin  there  are  enumerated  in 
Rule  3  certain  "contraband  goods"  the  import  and  export  of  which 
is  prohibited;  whilst  Rule  5  deals  with  "certain  commodities  heretofore 
contraband";  amongst  the  latter  is  opium.  Its  sale  is  restricted  to 
the  port  of  entry  and  trade  in  it  in  the  interior  is  forbidden  to  the 
foreigner.  Similarly  the  import  of  arms  is  subjected  to  restrictions; 
other  matters  dealt  with  are  the  subject  of  export  only.  It  is  clear 
that  the  import  of  arms  into  a  country  must  be  under  the  control  of 
its  Government  and  we  find  opium  in  company  with  such  articles  as 
these.  Moreover,  by  Section  III  (1)  of  the  Chefoo  Convention,  1876, 
an  arrangement  is  contemplated  "different  from  that  affecting  other 
imports."  The  position  of  opium  thus  became  that  it  was  admitted 
on  payment  of  duty  but  was  not  regarded  as  an  ordinary  article 
of  commerce. 

In  1894  came  the  treaty  relating  to  Burmah  and  Article  II  pro- 
vided generally  for  the  prohibition  of  the  importation  and  exportation 
of  opium  across  the  frontier.  This  state  of  affairs  continued  to 
1908  when  His  Majesty's  Government  entered  into  the  opium  agree- 
ment of  that  year  with  China.  It  was  the  outcome  of  a  popular 
movement  in  China  for  the  suppression  of  opium.  This  was  followed 
by  similar  agreement  in  1911  wherein  it  appears  that  "the  Chinese 
Government  have  adopted  a  most  rigorous  policy  for  prohibiting  the 
production,  the  transport,  and  the  smoking  of  native  opium,  and  His 
14008  o.  w. — 23 


354  I  EXTRATERRITORIAL  CASES. 

Majesty's  Government  have  expressed  their  agreement  therewith  and 
willingness  to  give  every  assistance."  Then  follows  an  undertaking 
that  if  the  growth  of  native  opium  ceases,  the  export  of  opium  from 
India  to  China  shall  cease  in  less  than  seven  years.  It  is  matter  of 
common  knowledge  that  this  export  to  China  has  ceased,  and  that  the 
ports  of  Canton  and  Shanghai  have  been  closed  to  the  import  of 
Indian  opium.  It  follows  that  His  Majesty's  Government  have  recog- 
nized that  the  Chinese  Government  has  taken  the  necessary  steps 
for  effectively  suppressing  the  "cultivation  and  import  of  native 
opium."  (Art.  3.)  And  part  of  the  means  by  which  this  suppression 
has  been  effected  is  the  enactment  in  the  provisional  Criminal  Code  of 
China  of  Article  266,  which  reads: 

"Any  person  who  manufactures,  sells,  keeps  for  the  purpose  of 
selling,  or  imports  from  a  foreign  land  any  opium  shall  be  liable  to 
penal  servitude     *     *     *     ^nd  a  fine." 

We  are  of  opinion  that  China  has  by  law  suppressed  the  import  of 
opium  and  that  His  Majesty's  Government  has  signified  its  conditional 
concurrence  in  this  suppression  in  so  far  as  it  affects  British  subjects 
by  the  agreement  of  1911  and  that  in  fact  the  condition  has  been  ful- 
filled. The  construction  urged  by  the  appellant  would  lead  to  the 
startling  result  that  now  British  subjects  may  import  opium  here  with 
impunity  whereas  formerly  the  import  was  only  allowed  after  pay- 
ment of  very  heavy  duties  and  under  very  considerable  restrictions. 

It  has  been  said  that  there  has  been  no  proof  of  this  state  of 
affairs  but  it  seems  clear  that  this  Court  is  bound  to  take  judicial 
notice  ^  of  the  law  of  China,  when  its  attention  is  called  to  it,  and 
further  that  it  is  unnecessary  to  prove  treaties  between  His  Majesty 
and  the  Government  of  China,  inasmuch  as  His  Majesty's  jurisdiction 
is  founded  amongst  other  things  on  treaty  and  Article  73,  which 
provides  for  the  punishment  of  the  breach  of  a  treaty  obligation, 
implies  the  duty  of  His  Courts  to  take  such  notice  of  them. 

Wo  are,  therefore,  of  opinion  that  this  appeal  fails  and  that  the 
conviction  should  stand. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Karl  Weigel,  Plaintiff,  v.  The  China  Press  et  al., 
Defendants. 

[Civil  action  No.  132;  filed  June  6,  1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  LIBEL:   Privilege:  Judicial  Proceedings.    A  fair  and  correct  re- 
port of  a  judicial   proceeding   is   qualifiedly   privileged   matter 

'  See  ante,  pp.  73,  83,  342.     Ed. 


WEIGEL  V.  CHINA  PRESS  ET  AL.,   JUNE   6,   1914.       355 

which  may  ordinarily  be  published  without  liability  except  for 
malice. 

2.  Id.  :    Id.  ;    Id.  :    What   is.     An    application   by   police   officers    to    a 

tribunal  of  competent  jurisdiction  resulting  in  the  issuance  of 
a  writ  or  warrant  in  connection  with  a  pending  criminal  inquiry 
is  a  "judicial  proceeding"  within  the  meaning  of  said  rule. 

3.  Id.  :  Id.  :  A  newspaper  statement,  in  publishing  such  a  report,  that 

"the  police  felt  justified  in  getting  a  warrant  against"  plaintiff 
"and  making  sure  he  is  within  their  reach"  preceded  by  head- 
lines indicating  that  he  was  "arrested"  and  "in  custody"  is  not 
shown  to  "exceed  the  privilege"  where  the  warrant  in  fact  com- 
manded a  thoro  search  of  plaintiff's  person  and  required  no 
property  to  be  brought  before  the  magistrate  issuing  the  war- 
rant. 

4.  Id.  :  Id.  :  "Arrest"  in  legal  parlance  means  any  form  of  detention 

by  an  officer  of  the  law.  It  requires  neither  warrant  nor  phys- 
ical force.  It  does  not  necessarily  imply  that  a  trial  is  to 
follow  nor  is  it  even   restricted  to  criminal  proceedings. 

5.  Id.  :  Id.  :  Id.  :   Overstatement.    Where  the  report  of  such  a  pro- 

ceeding is  technically  correct  in  characterizing  plaintiff's  deten- 
tion as  an  "arrest"  a  subsequent  instalment  overstating  the 
duration  thereof  does  not  become  actionable  libel  without  evi- 
dence that  such  overstatement  in  and  of  itself  caused  the 
damage  complained  of. 

Joseph  W.  Rice,  Esq.,  for  plaintiff. 

Messrs.  Jernigan  &  Fessenden,  for  defendants. 


LOBINGIER,  J.: 

During-  the  night  preceding  January  23d,  1914,  Mrs. 
Wilhelmine  Corfes  Neumann,  the  wife  of  a  prominent  Ger- 
man resident  of  Shanghai,  was  murdered  by  parties  who 
appear  to  be  still  unknown  at  this  writing.  On  the  morn- 
ing after,  Detective-Sergeant  Welch  of  the  Municipal  Police 
visited  the  Neumann  premises.  He  testifies  that  he  found 
what  he  considered  grounds  for  suspicion  against  plaintiff 
and  reported  them  to  Inspector  Armstrong  by  whom  action 
was  taken.  The  result  was  an  application  by  the  Shanghai 
Municipal  Police  Department  to  the  local  consulate  of  the 
German  Empire,  of  which  plaintiff  is  a  subject.  The  details 
of  this  application  are  not  in  evidence  but  the  result  was 
the  issuance  under  seal  of  said  consulate  and  delivery  to 
defendants  of  the  following  writ  or  warrant: 


356  I  EXTRATERRITORIAL  CASES. 

"Beglaubigte   Abschrift, 

Kaiserlich    Deutsches    Generalkonsulat  fiir   China. 
J.  No.  II.  101/14. 

In   der   Mordsache 

Wilhelmine  Corfes 
wird  die  Durchsuchung  der  Person  und  der  Ekkekten 

1.  Schlachters  Karl  Weigel 

2.  pp. 
angeordnet 

Schanghai,  den  23,  Januar  1914. 
Der  Kaiserliche  Generalkonsulat 
I.  V. 
Gez.  Ney. 
This  may  be  translated  as  follows : 

"Authenticated  Copy. 

Imperial  German  Consulate  General  for  China. 
J.  N.  II.  101/14. 

In  the  murder  of 
Wilhelmine  Corfes 
The  thoro  search  of  the  person  and  effects  of 

1.  Butcher   Karl   Weigel 

2.  pp. 

is  ordered. 

Shanghai,  Jan.  23,  1914 

The  Imperial  German  Consul  General 

I.  V. 

Gez.  Ney. 

Captain  Hilton-Johnson,  Department  Superintendent  of 
the  Municipal  Police,  testifies  that  the  application  for  a 
warrant  was  made  "because  there  were  grounds  for  sus- 
picion of  implication"  of  plaintiff. 

Detective-Sergeant  Prosser  testifies  regarding  plaintiff: 

"In  the  afternoon  when  he  came  to  the  office  I  was  there. 

Q.  About  what  time  was  that? 

A.  It  was  about  half  past  two  or  a  quarter  past  two. 

Q.  How  long  did  he  remain  there? 

A.  Until  about  six  o'clock;  until  his  property  was  searched  and 
his   statements   verified. 

Q.  He  remained  there  until  his  property  was  searched  and  the 
statements  he  made  were  verified — he  was  examined  by  the  police? 

A.  Yes,  sir. 

Q.  After  that  he  was  allowed  to  go? 

A.  Yes,  sir. 

The  foregoing  summarizes  the  material  parts  of  de- 
fendant's evidence.     Plaintiff's  own  version  of  the  proceed- 


WEIGEL  V.  CHINA  PRESS  ET  AL.,   JUNE   6,   1914.       357 

ings,  or  those  portions  with  which  he  was  familiar,  differs 
but  little.     Briefly  it  is  as  follows: 

He  had  previously  been  employed  by  Mr.  Neumann,  and 
was  called  to  the  latter's  house  and  told  of  the  tragedy 
the  morning  after.  Later  Mr.  Neumann  informed  Sub- 
Inspector  Reeves,  who  was  present  and  was  already  in- 
vestigating the  case,  that  plaintiff  could  give  information 
regarding  the  Chinese  servants  employed  in  the  house. 
Plaintiff  thereupon  accompanied  the  Inspector  to  the  Hong- 
kew  Police  Station  and  while  there  was  interrogated  about 
other  matters  than  the  servants.  He  was  asked,  e.  g.,  where 
he  had  been  the  night  before.  After  some  further  ques- 
tioning plaintiff  left  the  police  station  and  later  returned, 
he  says,  about  three  p.  m.,  at  which  time  he  was  told  that 
the  police  would  be  obliged  to  search  his  effects.  He  then 
went  to  his  lodgings  in  the  company  of  a  detective  who 
there  made  such  a  search. 

4:  :H  :)c  4:  4:  ^  i)' 

Such  a  horrible  catastrophe  as  this  murder  was  necessarily 
a  subject  of  universal  interest  in  the  community  and  the 
purveyors  of  news  found  in  it  a  fertile  field  for  exploitation. 
The  defendant  newspaper  in  its  two  issues  following  the 
date  of  the  affair  featured  it  in  front  page  articles,  each 
nearly  three  columns  in  length,  reviewing  every  circum- 
stance and  detail  of  which  keen  scented  reporters  could 
learn.  Plaintiff's  treatment  by  the  police  did  not  escape 
notice  and  the  reporter's  version  of  it  was  embodied  in  the 
following  paragraph  appearing  in  its  issue  of  January  24th : 

"Former  employee  arrested.  Developments  were  not  long  in  com- 
ing, for  the  police  felt  justified  in  getting  a  warrant  against  a  German 
named  Weigel,  who  was  formerly  in  Mr.  Neumann's  employ.  This 
was  issued  and  executed  within  an  hour.  The  police  admit  that,  at 
present,  they  have  nothing  absolutely  connecting  this  man  with  the 
crime  but  they  feel  justified  in  making  sure  he  is  within  their  reach 
pending  further  investigations." 

This  paragraph  appears  on  the  second  page  of  the  paper 
and  constitutes  possibly  one  twenty-fifth  of  the  entire  article. 
In  the  headlines  the  following  words  appear:  ''One  arrest 
made — Former  employee  placed  in  custody  by  police  on  sus- 
picion". 


358  I  EXTRATERRITORIAL  CASES. 

It  its  issue  of  January  25th  the  headlines  contain  the 
following:  "Two  Germans  released;  one  still  held".  In  the 
body  of  the  article  appears  this  paragraph: 

"Two  Germans  Released.  Nothing  further  was  done  before  any 
court  of  law  yesterday,  tho  two  Germans  on  whom  suspicion  rested 
for  a  while  were  also  temporarily  detained  by  the  police.  They, 
however,  were  able  to  clear  themselves  absolutely,  giving  a  completely 
satisfactory  account  of  their  movements  on  the  night  of  the  murder 
and  they  were  allowed  to  depart.  The  man  arrested  shortly  after 
the  discovery  of  the  murder  is  still  being  held,  pending  further  in- 
vestigations." 

The  foregoing  quotations  constitute  the  basis  of  plain- 
tiff's action. 

The  petition  sets  them  out  with  innuendo  and  alleges  that 
they 

"Were  and  are  false  and  malicious  and  constitute  a  libel  upon  the 
plaintiff;     *     *     * 

"that  by  reason  of  the  aforesaid  false  malicious  and  defamatory 
statements  so  Avritten  printed  and  published  by  the  defendants  of  and 
concerning  the  plaintiff,  plaintiff  has  been  and  is  wholly  unable  to 
obtain  employment  and  has  been  and  is  since  the  publication  of  said 
statements  refused  employment;" 

and 

"that  the  plaintiff  has  suffered  gi'eat  mental  distress  and  agony 
by  reason  of  the  printing  and  publication  of  the  aforesaid  false  and 
defamatory  statements; — All  to  Plaintiff's  damage  in  the  sum  of  Ten 
Thousand  Taels," 

The  answer  admits  the  publications  but  alleges  that  of 
January  24  is 

"privileged  and  is  a  fair  and  correct  statement  of  the  facts  of 
the  taking  into  custody  and  detention  of  plaintiff  by  the  Municipal 
Police  of  Shanghai  and  made  in  the  bona  fide  belief  that  said  pub- 
lication was  true  and  without  any  malice  toward  plaintiff;" 

and  that  of  January  25 

"a  correct  and  accurate  statement  of  the  information  furnished 
by  the  police  as  aforesaid  and  were  published  by  defendants  after 
careful  inquiry  and  investigation  as  aforesaid  and  in  the  bona  fide 
belief  that  said  statements  were  true  and  without  malice  toward 
plaintiff  and  are  no  libel;" 

tho  it  is  admitted  that  part  of  the  headline  and  the  last 
sentence  of  the  said   second   article   "were  not  correct." 


WEIGEL  V.  CHINA  PRESS  ET  AL.,  JUNE  6,   1914.       359 

Most  of  the  other  averments  of  the  petition  are  denied 
and  the  answer  in  closing  alleges  the  publication  by  de- 
fendants of 

"a  statement  completely  exonerating  plaintiff  from  any  connection 
with  the  Neumann  murder." 

No  reply  or  further  pleading  was  filed  and  the  cause  pro- 
ceeded to  trial  upon  the  petition  and  answer. 

Taking  up  the  first  publication  does  the  evidence  warrant 
plaintiff's  averment  that  it  is  false?  We  have  reviewed 
the  proceedings  described  therein  and  have  seen  how  they 
were  conducted  under  the  authority  of  a  writ  or  warrant 
issued  by  the  German  Consulate.  Plaintiff  objects  that  the 
tenor  of  the  article  complained  of  is  to  the  effect  that  this 
was  a  warrant  of  arrest.  But  it  will  be  observed  that  the 
article  does  not  specify  the  class  of  "warrant"  which  had 
been  obtained  "against"  plaintiff.  His  counsel's  contention 
"that  the  natural  meaning  of  the  word  warrant  standing 
by  itself  is  a  warrant  of  arrest"  finds  contradiction  in  that 
clause  of  the  Federal  Constitution  which  provides  that 

"no  warrants  shall  issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  person  or  things  to  be  seized,"  ^ 

and  which  has  been  judicially  declared  not  to  include  a 
warrant  of  arrest,  but  merely  search  warrants.- 

We  do  not  see  that  plaintiff's  plight  would  have  been 
improved  in  the  least  if,  instead  of  publishing  the  article 
complained  of,  defendants  had  printed  a  literal  translation 
of  the  writ  or  warrant  in  question;  for  then  the  public 
would  have  been  apprised  of  what  seems  to  us  the  more 
startling  information  that  plaintiff's  own  Consulate  General 
had  issued  an  order  commanding  (and  not  merely  permit- 
ting) the  search  of  plaintiff's  person  and  effects  and  that 
all  of  this  had  been  done  in  the  Neumann  murder  case  which 
plaintiff  alleges  (Par.  VII)  "was  the  most  brutal,  dreadful 
and  heinous  crime  ever  committed  in  Shanghai  and  the 
most  notorious  and  widely  known." 

'Amendment  IV.  Cf.  Philippine  Bill  (Act  of  Congress  of  July 
1,  1902),  sec.  5. 

*  U.  S.  V.  Wilson,  4  Phil.,  317,  323. 


360  I  EXTRATERRITORIAL  CASES. 

In  fact  this  writ  differs  in  several  particulars  ^  from  the 
"search  warrant"  of  Anglo-American  law  which  is  defined 
to  be 

"an  order  in  writing  in  the  name  of  the  state,  signed  by  a  magistrate 
and  directed  to  a  peace  officer,  commanding  him  to  search  for  per- 
sonal property  and  bring  it  before  the  magistrate." ' 

It  will  be  observed  that  the  writ  in  question  was  not  di- 
rected to  anyone,  nor  limited  to  a  search  for  property,  but 
expressly  co^mnanded  a  search  of  the  person,  thus  requir- 
ing, for  a  time  at  least,  the  person's  detention,  and  did  not 
require  the  property  to  be  brought  before  the  magistrate 
but  apparently  conferred  full  discretion  upon  the  police 
officers.  The  caption  of  the  writ,  making  it  appear  to  have 
been  issued  in  the  murder  case,  affords  another  striking 
difference  and  it  is  doubtful  if  this  would  have  been  ad- 
equately described  by  calling  it  a  "search  warrant." 

The  objection  that  the  article  failed  to  mention  that  the 
warrant  contained  the  names  of  two  persons  can  hardly 
avail  plaintiff  so  long  as  the  copy  which  he  offers  in  evi- 
dence contains  only  his  name.  While  every  effort  was 
made  by  this  court  to  have  the  original  warrant  introduced, 
or  at  least  inspected,  by  the  Court,  only  the  said  copy  has 
been  forthcoming  and  plaintiff  must  abide  by  its  contents. 

Nor  do  we  think  that  the  facts  disclose  the  falsity  of 
the  statement  that  the  writ  was  "issued  and  executed  within 
an  hour."  The  Court  also  made  an  effort  to  inform  itself 
as  to  the  exact  time  of  issue,  inquiring  particularly  of  the 
witness  from  the  German  Consulate;  but  no  information 
was  obtained.  According  to  Detective-sergeant  Welch  no 
action  was  taken  on  his  report  upon  which  the  writ  was 
applied  for  until  after  midday  of  January  23,  and  according 
to  Detective-sergeant  Prosser  plaintiff  came  to  the  Police 
Headquarters  at  2.15  or  2.30.  As  the  proceedings  under  the 
warrant  seem  to  have  started  very  soon  afterward,  its  exe- 
cution may  literally  have  commenced  within  an  hour. 

The  most  serious  objection  to  the  first  article  as  urged  in 
plaintiff's  brief  relates  to  the  use  of  the  word  "arrest"  and 

^  See    Dalcke,    Strafrecht    and    Strafprozess    (Berlin,    1905),    sees. 
102-110,   112. 
*  35  Cyc,  1265. 


WEIGEL  V.  CHINA  PRESS  ET  AL.,   JUNE   6,   1914.       361 

"custody."  Neither  of  these  is  employed  in  the  body  of 
the  article;  both  appear  in  the  headlines  and  would  nat- 
urally be  read  in  connection  with,  and  interpreted  by, 
the  article  itself.  It  is  clear  from  the  evidence  that  plaintiff 
was  not  "arrested"  for  the  purpose  of  arraignment  and 
trial,  nor  does  the  article  so  state.  Indeed  it  rather  in- 
dicates the  contrary  in  stating  that  the  police  "feel  justi- 
fied in  making  sure  he  is  within  their  reach  pending  further 
investigations."  The  impression  produced  by  this  would 
seem  to  be  that  the  purpose  of  the  whole  proceeding  was 
to  forestall  plaintiff's  possible  escape.  And  this,  accord- 
ing to  Captain  Hilton-Johnson,  was  actually  the  case  for 
he  testified  that  an  attempted  escape  would  have  been 
restrained,  but  that  until  such  attempt  the  detention  would 
hardly  be  obvious.  Certainly  plaintiff  was  under  detention 
while  his  effects  were  being  searched  and  he  went  to  the  place 
of  search  in  the  company  of  an  officer  who,  according  to  the 
testimony,  would  not  have  permitted  the  plaintiff  to  go  even 
had  he  so  desired. 

Now  the  terms  "arrest"  and  custody,"  like  the  term 
"warrant,"  are  used  in  several  senses.  An  "arrest"  is  not 
always  for  the  same  purpose  nor  in  the  same  manner. 
There  may  be  an  arrest  for  the  purpose  of  arraignment  and 
trial  and  there  may  be  an  arrest  merely  for  the  purpose 
of  holding  the  prisoner  pending  action  by  some  other  au- 
thority, as  in  extradition  cases.  Where  a  party  is  held 
for  several  hours  (as  Detective-sergeant  Prosser  testifies 
plaintiff  was)  for  the  purpose  of  investigating  his  possible 
connection  with  a  pending  case  and  is  so  held  under  the 
written  authority  of  his  own  Government,  is  it  a  perversion 
of  truth  to  call  such  a  proceeding  an  "arrest"?  By  com- 
manding a  search  of  his  person,  the  writ,  as  has  been  seen, 
required  plaintiff's  "detention"  and  therefore  "arrest"  for 
a  time  at  least.  But  a  writ  is  not  always  essential ;  for 
arrests  without  warrant  are  quite  common  and  entirely 
proper  under  certain  circumstances.^  Nor  is  it  necessary 
for  the  arresting  officer  to  lay  hands  on  the  prisoner.^ 

'Voorhees,  Law  of  Arrest  (1904),  Chapter  VI. 
Md.  sec.  69;  Butler  v.  Washburn,  25  N.  H.,  258;  Bissell  v.  Gould, 
1  Wend.  (N.  Y.),  210,  19  Am.  Dec,  480;  Jones  v.  Jones,  35  N.  C,  449. 


362  I  EXTRATERRITORIAL  CASES. 

The  term  "arrest"  is  not  even  confined  to  criminal  pro- 
ceedings for  arrest  upon  attachment  in  civil  actions  is  au- 
thorized in  many  American  states  as  well  as  by  the  Consular 
Court  Regulations,"  and  it  has  even  been  judicially  declared 
that  the  term  belongs  to  such  actions  and  that  "apprehen- 
sion" is  the  term  for  criminal  proceedings.** 

Nor  can  we  agree  that  any  different  rule  of  interpretation 
should  be  followed  than  if  this  were  an  action  for  false 
arrest.  To  permit  a  plaintiff  to  vary  the  meaning  of  the 
word  according  to  the  action  he  might  bring  would  be  as 
reprehensible  as  to  permit  a  defendant  to  "defame  in  one 
sense  and  defend  in  another." 

We  are  unable,  therefore,  to  accept  plaintiff's  contention 
that  the  necessary  meaning  of  the  first  article  was  that 
plaintiff'  had  been  arrested  under  a  warrant  for  trial  on  a 
charge  of  murder.  The  terms  used  may  not  be  very  spe- 
cific and  the  reporter  who  used  them  may  not  have  under- 
stood all  of  their  meanings;  but  certainly  the  worst 
meanings  are  not  to  be  imputed  where  others  are  possible. 
Nor  is  the  character  of  the  article  to  be  determined  from 
isolated  words  and  phrases.  It  was  observed  of  a  much 
more  offensive  series  of  articles  ^ 

"while,  undoubtedly,  certain  expressions  in  each  of  the  publications, 
if  construed  without  relation  to  the  rest  of  the  article  in  which  they 
appear,  would  be  libelous,  yet,  if  construed  as  they  must  be  with 
reference  to  the  whole  text,  the  libelous  character  cannot  be  estab- 
lished. The  articles  are  undoubtedly  qualifiedly  privileged.  That 
being  true,  they  are  not  libelous  per  se,  and,  no  express  malice  being 
alleged,  and  there  being  nothing  in  the  articles  themselves,  or  in  the 
circumstances  surrounding  their  publication,  to  indicate  malice — the 
desire  evidently  being  only  to  publish  sensational  news  in  a  sensa- 
tional and  somewhat  flamboyant  and  embellished  style — the  publishers 
are  not  legally  responsive  in  damages." 

We  certainly  cannot  say,  in  the  light  of  this  decision,  that 
the  proof  here  shows  the  first  article  to  be  a  false  report 
of  the  proceeding. 

'Par.  15. 

'  Hogan  V.  Stophlet,  179  111.,  150,  44  L.  R.  A.,  809. 

"McClure  v.  Review  Publishing  Co.,  38  Wash.,  160,  80  Pac,  303. 


WEIGEL  V.  CHINA  PRESS  ET  AL.,   JUNE   6,   1914.       363 
III. 

The  second  article  remains  to  be  considered.  It  will  be 
observed  that  no  names  are  mentioned  and  there  is  no 
evidence  that  any  reader  of  the  defendant  newspaper  under- 
stood that  the  man  referred  to  as  "still  being  held"  was 
plaintiff.  In  fact  his  counsel  declares  in  argument  that 
"undoubtedly  the  two  Germans  referred  to  are  the  plaintiff 
and  the  other  German  whose  name  was  also  on  the  search 
warrant." 

If  the  answer  contained  a  general  denial  it  is  doubtful 
if  we  would  be  justified  in  finding  that  the  last  sentence  of 
the  second  article  refers  to  plaintiff,  and  we  can  only  clearly 
so  find  by  applying  the  technical  rule  of  pleading  that  aver- 
ments not  admitted  are  to  be  taken  as  true.  But  certainly 
if  we  are  to  apply  this  rule  in  favor  of  plaintiff  and  against 
defendants  on  this  point  we  could  not  consistently  fail  to 
apply  it  in  favor  of  defendants  and  against  plaintiff  as  re- 
gards the  untraversed  allegation  of  privilege  in  the  answer. 
The  rule  must  work  both  ways. 

Assuming  however  that  plaintiff  is  the  one  referred  to 
as  "still  being  held"  the  question  remains  whether  this  state- 
ment alone,  which  is  admitted  to  be  incorrect  as  regards 
plaintiff,  is  libelous  per  se.  That  he  had  been  held,  in  the 
sense  of  being  detained  for  examination,  until  six  in  the 
afternoon,  is  the  testimony,  as  has  been  seen,  of  Detective- 
sergeant  Prosser.  The  statement  that  he  was  "still  being 
held"  speaks  of  course  from  the  hour  of  going  to  press, 
probably  about  midnight.  There  was  accordingly  an  over- 
statement of  some  six  hours  regarding  the  period  of  de- 
tention. 

Now  we  have  not  been  cited  to  any  authority  and  have 
been  unable  after  considerable  search  to  find  any,  to  the 
effect  that  such  an  over-statement  as  to  the  duration  of  an 
actual  arrest  constitutes  libel  per  se.  Of  course  had  there 
been  no  arrest  or  detention  at  all  the  second  article  would 
have  been  an  aggravation  of  libel,  but  since,  as  we 
have  found,  there  was  an  arrest,  the  over-statement  of  its 
duration  appears  to  have  been  little  more  than  an  incorrect 


364  I  EXTRATERRITORIAL  CASES. 

detail  which  would  become  actionable  only  upon  proof  of 
damage.^" 

There  is  no  evidence  here  of  special  damage  from  these 
publications.  Plaintiff  was  not  employed  previous  to  their 
appearance;  he  has  had  two  positions  since.  And  notwith- 
standing his  averment  that  he 

"has  been  and  is  since  the  publication  of  said  statements  refused 
employment" 

it  appears  that  he  is  now  employed  and  that  while  he  lost  one 
situation  the  evidence  would  not  justify  us  in  finding  that 
such  loss  was  due  to  these  publications.  The  one  witness 
beside  plaintiff  who  was  called  on  this  point  was  a  former 
employer,  Mr.  Schiitz,  who  was  questioned  as  follows: 

"Q.  Did  you  make  any  arrangements  with  Mr.  Weigel  to  enter 
your   emplojmient? 

A.  Yes,  sir;  that  was  in  the  beginning  of  February,  the  5th  or 
6th  of  the  month.     I  employed  him  on  commission  and  some  expenses. 

Q.  How  long  did  he  remain  in  your  employ? 

A.  About  five  day? — four  or  five  days.  I  don't  remember  just 
exactly. 

Q.  Did  he  leave  your  employ  in  four  or  five  days? 

A.  I  said  to  him  so  many  people  come  to  me  and  said  that  Weigel 
was  employed  by  me.  I  said  yes  and  they  said  you  know  about 
the  murder.  I  said  yes  and  I  read  in  the  paper  that  Weigel  was 
the  murderer.  I  know  it  was  not  true  but  later  I  told  Weigel  so 
many  people  come  you  had  better  go;  they  tell  me  you  had  something 
to  do  with  the  murder  case  and  you  had  better  leave  the  position. 

Q.  Did  you  then  have  reason  to  believe  he  intended  to  sue  The 
China  Press? 

A.  I  did  not  know  anything  about  The  China  Press.  I  never  read 
The  China  Press." 

It  will  be  seen  from  this  that  not  only  had  the  employer 
not  read  the  publications  complained  of  but  apparently  none 

^^  "To  sustain  a  private  action  for  the  recovery  of  a  compensation 
in  damages  for  a  false  and  unauthorized  publication,  the  plaintiff 
in  such  action  must  either  aver  and  prove  that  he  has  sustained 
some  special  damage  from  the  publication  of  the  matter  charged 
against  him;  or  the  nature  of  the  charge  itself  must  be  such  that 
the  court  can  legally  presume  he  has  been  degraded  in  the  estimation 
of  his  acquaintances  or  of  the  public,  or  has  suffered  some  other 
loss  either  in  his  property,  character,  or  business,  or  in  his  domestic 
or  social  relations,  in  consequence  of  the  publication  of  such  charge." 

Stone  V.  Cooper,  2  Den.   (N.  Y.)   299.     Cf.  25  Cyc.  253. 


CAVANAGH  V.  WORDEN,  JUNE  13,  1914.  365 

of  those  who  spoke  to  him  about  plaintiff  had  read  them, 
for  no  mention  is  made  of  newspaper  articles,  but  only  of 
the  fact  that  plaintiff  had  something  to  do  with  the  murder 
case,  which  would  be  sufficiently  accounted  for  by  the  lan- 
guage of  the  writ  or  warrant  issued  in  the  murder  case  of 
Wilhelmine  Corfes.  Especially  if  they  were  Germans,  as 
would  seem  not  improbable,  they  would  appear  much  more 
likely  to  derive  their  information  from  that  source  than 
from  publications  in  a  foreign  language  which  none  of  them 
are  shown  to  have  read.     And  altho  the  petition  alleges 

"that  the  said  news  articles  so  published  in  The  China  Press  have 
been  sent  thruout  the  Orient  and  have  been  reproduced  and  reported 
in  other  newspapers  published  in  other  cities" 

there  is  nothing  in  the  proof  to  support  this  averment.  The 
simple  truth  seems  to  be  that  before  the  publications  com- 
plained of  plaintiff  had  become  the  victim  of  a  groundless 
and  most  unjust  suspicion  which  took  the  form  of  a 
legal  proceeding  under  the  authority  of  his  own  govern- 
mental functionaries  and  that  this  was  the  chief  cause  of 
the  prejudice  incurred  by  plaintiff  rather  than  the  subse- 
quent newspaper  descriptions  of  it  however  vague  and  in- 
accurate they  may  have  been.  Plaintiff's  remedy,  like  the 
source  of  the  injustice  done  him,  should,  it  would  seem,  be 
sought  farther  back  than  the  publications. 

On  the  whole  we  are  of  the  opinion  that  a  judgment  for 
plaintiff  on  this  evidence  could  not  be  sustained  and  it  is 
accordingly  considered  and  adjudged  that  he  take  nothing 
by  his  petition.  There  will  be  no  allowance  of  costs  to 
either  party. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Tahmi  H.   Cavanagh,  Plaintiff,  v.   Salter  D.   Worden, 

Defendant. 

[Civil  action  No.  131;  filed  June  13,  1914.] 

SYLLABUS. 

(By  the  Court.) 

1.  MARRIAGE:  SOLEMNIZATION:  PRESUMPTION.  Under  the  maxim 
semper  praesumitur  pro  matrimonio  a  plaintiff  who  admits  the 
performance  of  a  marriage  ceremony  to  which  she  was  a  party 


366  I   EXTRATERRITORIAL    CASES. 

has  more  than  the  usual  burden  to  prove  an  averment  that  she 
"refused  to  give  her  consent"  thereto. 

2.  Id.:  Such  burden  is  not  met  where  all  the  witnesses  present  except 

plaintiff  contradict  her  statement  that  she  answered  "no"  to 
the  clergyman's  questions. 

3.  Id.  :   Implied  Consent  and  acquiescence  by  silence  during  such  a 

ceremony  will  suffice. 

4.  DIVORCE:     Jurisdiction:    Grounds.     Since    the    decision    of    the 

Court  of  Appeals  recognizing  as  in  force  here  all  pertinent  acts 
of  Congress,  legislation  prescribing  the  usual  grounds  for  di- 
vorce is  not  lacking  and  the  jurisdiction  to  grant  relief  is  com- 
plete. 

5.  Id.  :  Desertion  as  a  ground  for  divorce  occurs  where  either  spouse 

continuously  refuses  without  justification  to  live  with  the  other. 

6.  Id.  :    Effect.     Whether  this  court  may,  in  a  proper  case,  decree 

a  divorce  a  vinculo  tnatrhnonii  on  the  ground  of  desertion  or 
cruelty  quaere;  the  case  in  judgment  held  to  warrant  no  more 
than  a  divorce  a  mensa  et  thoro. 

Joseph  W.  Rice,  Esq.,  for  complainant. 
Cecil  R.  Holcomb,  Esq.,  for  respondent. 

LOBINGIER,  J.: 

This  is  a  bill  for  the  annulment  of  a  marriage  between 
plaintiff  and  defendant  conceded  to  have  been  formally  sol- 
emnized. After  alleging  threats  on  the  part  of  defendant 
to  induce  her  to  consent,  plaintiff  avers  further, 

"that  the  clergyman  then  attempted  to  proceed  with  the  marriage 
ceremony  and  did  so  proceed,  but  that  the  plaintiff  refused  to  give 
her  consent,  and  refused  to  plight  and  give  her  vows,  and  refused 
to  participate  in  said  ceremony;  that  nevertheless  the  plaintiff  and 
the  defendant  were  by  said  priest  pronounced  to  be  husband  and 
wife." 

In  his  answer, 

"Defendant  denies  that  he  did  alarm  and  or  frighten  her  or  that 
she  the  plaintiff  refused  to  give  her  vows  and  or  refused  to  partic- 
ipate in  said  ceremony," 

In  ruling  ^  upon  the  demurrer  we  have  found  that  this 
court  has  jurisdiction  to  grant  the  relief  prayed  for.  We 
have  now  to  determine  whether,  upon  the  issue  of  fact  thus 
raised,  plaintiff  has  made  a  case  which  entitles  her  to  such 
relief. 

'  Order  of  April  18,  ante,  p.  317. 


CAVANAGH  V.  WORDEN,  JUNE  13,  1914.  3^7 

Obviously  the  burden  which  rests  upon  every  plaintiff  to 
prove  all  material  averments  is  here  increased  by  reason  of 
the  time  honored  maxim  semper  praesumitur  pro  matri- 
monio.  It  being  conceded  that  a  marriage  ceremony  ac- 
tually took  place,  plaintiff  must  show  by  a  preponderance 
of  the  evidence  that  she,  as  she  alleges,  "refused  to  give 
her  consent." 

She  herself  testifies  indeed  that  when  the  clergyman 
asked  her  the  usual  question  whether  she  took  the  defendant 
as  her  husband  she  said  "no";  but  she  is  the  only  witness 
called  by  either  side  who  so  testifies.  Of  the  remaining 
witnesses  w^ho  testified  on  this  point  three  are  positive  that 
plaintiff  said  "yes"  in  response  to  said  question.  The 
other  witness,  the  officiating  clergyman,  says  that  plain- 
tiff did  not  respond  to  the  question;  but  as  the  others,  or 
some  of  them,  appear  to  have  stood  nearer  to  the  plaintiff 
than  the  clergyman  himself  this  may  have  meant  merely  a 
failure  on  his  part  to  hear  her  say  "no"  and  that  he  un- 
derstood her  to  acquiesce,  which  would  naturally  be  the  case 
or  he  would  never  have  proceeded  with  the  ceremony. 

Now  we  certainly  cannot  say  under  this  state  of  the  tes- 
timony that  plaintiff  has  met  the  burden  which  the  law 
imposes  upon  her  of  proving  "that  she  refused  to  give  her 
consent."  The  case  therefore  does  not  fall  within  the  rule 
of  the  authority  cited  by  plaintiff's  counsel  where  the  other 
witnesses  and  the  surrounding  circumstances  "corroborated 
the  testimony  of  the  defendant  that  she  never  consented 
to  the  marriage."  ^  Even  where  the  evidence  in  support 
of  the  marriage  was  less  pronounced  than  here  it  was  up- 
held "  and  if  we  were  to  accept  the  clergyman's  under- 
standing that  the  plaintiff,  while  not  responding  in  the 
affirmative,  offered  no  objection  to  proceeding  after  the  cer- 
emony was  once  commenced,  the  result  would  be  the  same. 
For  it  is  also  an  ancient  maxim  that  "silence  gives  consent." 
This,  indeed,  is  recognized  in  the  very  authority  cited  plain- 
tiff's counsel  where  it  is  stated: 

'Roszel  V.  Roszel,  73  Mich.,  133,  40  N.  W.,  858,  16  Am.  State 
Rep.,  569. 

'Martinez  v.  Tan,  12  Philippine,  731.  Cf.  Hilton  v.  Roylance,  25 
Utah,  129,  69  Pac,  660,  58  L.  R.  A.,  723,  95  Am.  State  Rep.,  821. 


368  I  EXTRATERRITORIAL  CASES. 

"To  constitute  a  valid  marriage  it  must  be  entered  into  with  the 
consent  and  agreement  of  both  parties  freely  and  intelligently  given, 
which  may  be  expressed  either  verbally  or  in  writing  or  implied  from 
the  acts  of  the  parties  or  the  ceremony  performed.* 

We  do  not  think,  either,  that  this  question  of  consent  can 
be  determined  from  the  circumstances  which  preceded  or 
followed  the  ceremony.  The  question  is,  Did  plaintiff  con- 
sent, overtly  or  by  implication,  during  the  ceremony?  If 
she  did  it  is  not  material  whether  she  had  been  unwill- 
ing previously  or  whether  she  afterward  repented,  as  she 
seems  to  have  done.  That  she  "refused  to  give  her  con- 
sent" during  the  ceremony  and  at  the  crucial  point  in  the 
whole  proceeding  remains,  we  must  find,  wholly  unproven. 

Finally  we  do  not  think  the  evidence  sufficient  to  support 
plaintiff's  further  allegation, 

"that  she  then  refused  and  has  ever  since  invariably,  unwaveringly 
and  continuously  refused  to  allow  cohabitation  and  has  never  in  fact 
lived  or  cohabited  with  said  defendant," 

Here  again  the  burden  rests  upon  her  and,  while  this 
is  a  fact  necessarily  known  only  to  her  and  the  defendant, 
he  is  even  more  positive  in  affirming  such  cohabitation,  im- 
mediately following  the  marriage,  than  she  is  in  denying  it. 
We  cannot  assume  that  defendant  is  a  less  credible  witness 
on  this  point  than  plaintiff.  At  least  the  testimony  is 
evenly  balanced;  it  does  not  preponderate  in  plaintiff's 
favor  as  it  must  in  order  that  she  may  meet  the  burden 
of  proof. 

II. 

Defendant's  answer,  which  also  contains  in  effect  a  cross- 
bill, avers, 

"that  plaintiff  refused  to  accept  and  live  with  defendant  according 
to  his  means  to  provide  for  her  and  deserted  him," 

and  there  is  also  a  long  averment  of  cruelty  on  the  part 
of  plaintiff  in  making  various  charges  against  the  defendant 
and  upon  these  two  averments  the  bill  prays 

"that  the  defendant  be  adjudged  and  decreed  divorced  from  the 
plaintiff." 

*26  Cyc,  832-3. 


CAVANAGH  V.  WORDEN,  JUNE  13,  1914.  369 

It  is  settled  that  such  relief  may  be  granted  upon  a  cross- 
bill even  where,  as  here,  the  prayer  of  the  original  bill  is  for 
annulment  ^  and  the  question  becomes  one  of  jurisdiction. 
The  American  Consular  Courts  in  China,  to  whose  former 
extensive  jurisdiction  this  Court  has  largely  succeeded,  not 
infrequently  granted  divorces.  Instances  are  recorded  of 
such  decrees  by  Consular  Judges  at  Newchwang  in  1894  ^ 
at  Shanghai  in  1902  ^  and  at  Tientsin.  Probably  there  were 
many  others  which  have  not  found  their  way  into  the  books ; 
for  as  early  as  1864  Minister  Burlingame,  in  framing  Reg- 
ulations ^  for  the  Consular  Courts,  included  a  number  of 
sections  (46-52)  on  "Divorce."  It  is  true  that  these  do  not 
expressly  assume  to  confer  jurisdiction  (they  rather  as- 
sume its  pre-existence)  ;  but  the  fact  that  such  jurisdiction 
was  exercised  over  so  long  a  period,  and  that  the  marital 
status  and  even  legitimacy  of  Americans  yet  living  may 
depend  thereon,  must  give  us  pause  in  questioning  that 
jurisdiction  now.  It  might  have  been  upheld  under  the 
general  grant  of  equity  powers  ^  for  authority  is  not  want- 
ing for  the  doctrine  that  such  a  grant  includes  divorce, ^° 

In  an  earlier  decision  of  this  court "  such  relief  was 
denied  mainly  on  the  ground  that, 

"  Wadsworth  v.  Wadsworth,  81  Cal.,  182,  where  the  decisions, 
especially  those  of  the  ecclesiastical  courts,  are  reviewed  at  length. 

'Moore,  International  Law  Digest,  III,  459;  U.  S.  Foreign  Rela- 
tions (1894),  139. 

'  North  China  Herald,  LXIX,  1138,  1194. 

*  Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  230. 

•12  U.  S.  Stats,  at  Large,  Ch.  179,  sec.  4;  U.  S.  Rev.  Stats., 
sec.  4086.  Cf.  Act  of  June  30,  1906,  creating  this  court,  34  U.  S. 
Stats,  at  Large,  Ch.  3934,  Part  I,  814,  sec.  4. 

"  "It  is  therefore  not  suprising  that  this  court  should  have  uniformly 
regarded  actions  of  divorce  as  'cases  in  equity.'  "  Sharon  v.  Sharon, 
67  Cal.,  193. 

"Divorce  causes  belong  to  Chancery  jurisdiction,"  In  re  Christen- 
sen,  17  Utah,  412,  53  Pac,  1003,  70  Am.  State  Rep.,  794,  41  L.  R, 
A.,  504. 

It  is  true  that  a  different  rule  prevails  in  New  York  (Griffin  v. 
Griffin,  47  N.  Y.,  134)  but  this  seems  inconsistent  with  the  reason- 
ing of  Chancellor  Kent  in  the  earlier  case  of  Wightman  v,  Wight- 
man,  4  Johns  Ch.,  343. 

"  McDermid  v,  McDermid,  March  18,  1907. 

14008  O.  W. 24 


370  I  EXTRATERRITORIAL  CASES. 

"the  Minister  has  not  issued  regulations  prescribing  grounds  on 
which  divorce  or  judicial  separation  shall  be  granted." 

But  the  subsequent  announcement  of  the  Court  of  Ap- 
peals ^-  that  Congressional  legislation,  tho  enacted  origi- 
nally for  another  locality,  is  to  be  applied  here  when  the 
subject  is  not  otherwise  provided  for,  supplies  that  defect. 
For  Congress  has  prescribed  "grounds"  on  which  divorce 
or  judicial  separation  shall  be  granted  in  both  Alaska  ^^  and 
the  District  of  Columbia.^* 

And  not  only  are  the  grounds  prescribed  but  the  jurisdic- 
tion itself  is  expressly  conferred  upon  Courts  which,  by 
virtue  of  the  extension,  must  include  this  Court,  tho  not 
the  Consular  Courts  whose  civil  jurisdiction  is  limited  to 
cases  where  the  amount  involved  does  not  exceed  five  hun- 
dred dollars,  while  divorce  cases  involve  a  status  whose 
pecuniary  value  cannot  be  estimated. ^^ 

III. 

Having  found  that  such  jurisdiction  exists  we  may  now 
inquire  whether  the  facts  in  this  case  call  for  its  exercise. 
We  have  seen  that  defendant  in  his  cross-bill  alleges  de- 
sertion on  the  part  of  the  plaintiff.  This  is  in  effect  also 
alleged  by  plaintiff  in  her  averment 

"that  she  then  refused  and  has  ever  since  invariably,  unwaveringly 
and  continuously  refused  to  allow  cohabitation  and  has  never  in 
fact  lived  or  cohabited  with  said  defendant." 

In  fact  plaintiff  has  made  no  concealment  of  her  fixed 
resolution  not  to  live  with  defendant  and,  according  to  the 
testimony  of  one  of  the  witnesses,  plaintiff  told  her  that  she 
had  sent  defendant  away.  This  action  and  this  refusal  on 
the  part  of  plaintiff  to  live  with  defendant  constitutes  in 
law  desertion  which,  as  defined  by  a  work  of  recognized 
authority," 

''  Biddle  v.  United  States,  ante,  p.  120. 

"  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  II,  sec.  467;  Alaska 
Compiled  Laws,  sec.   1302    (1900). 

"  81  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854  [Dist.  Columbia  Code 
(1901)],  sec.  966. 

"  Heatherwick  v.  Heatherwick,  32  111.,  73;  demons  v.  Helehan,  52 
Neb.,  287,  72  N.  W.,  270. 

"14  Cyc,  611. 


CAVANAGH  V.  WORDEN,  JUNE   13,   1914.  371 

"consists  in  the  voluntary  separation  of  one  spouse  from  the  other, 
for  the  prescribed  time,  without  the  latter 's  consent,  without  justifi- 
cation, and  with  the  intention  of  r.ot  returning." 

Of  the  two  Acts  of  Congress  above  cited  prescribing 
grounds  for  divorce,  that  relating  to  the  District  of  Co- 
lumbia, as  the  latest  expression  of  legislative  opinion,  will 
naturally  be  applied  here  if  the  two  are  in  conflict.^'  It 
provides, 

"that  legal  separation  from  bed  and  board  may  be  granted  for 
drunkenness,  cruelty,  or  desertion." " 

It  fixes  no  time,  however,  during  which  the  separation 
must  continue.  In  the  case  at  bar  it  began  a  few  days 
after  the  marriage  ceremony  and  continued  uninterruptedly 
up  to  the  time  of  the  trial  and  presumably  until  the  present 
date.  On  the  showing  made,  therefore,  we  must  find  that 
defendant  has  established  his  alleged  ground  of  desertion 
and  it  is  unnecessary  to  consider  whether  he  has  also  proved 
his  second  alleged  ground  of  cruelty  since  either  ground 
will  entitle  him  to  relief. 

IV. 

The  only  remaining  question  is  whether  defendant  is 
entitled  to  the  full  relief  prayed  for,  viz. :  absolute  divorce. 
For  either  of  the  grounds  alleged  the  provision  last  quoted 
authorizes  only  "legal  separation  from  bed  and  board."  In 
the  Consular  Court  Regulations  already  mentioned  and  pro- 
mulgated by  the  American  Minister  under  the  express  au- 
thority of  Congress  ^^  it  is  provided  that, 

"Divorce  releases  both  parties,  and  they  shall  not  be  remarried  to 
each  other."'" 

Whether  this  clause  would  be  sufficient,  in  a  proper  case, 
to  authorize  this  court  to  grant  an  absolute  divorce  for 
either  of  the  grounds  here  alleged  is  a  question  which  we 
prefer  to  leave  open  until  such  case  arises.     Assuming  that 

"  36  Cyc,  1130. 

"  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  966. 
"Act  of  June  22,  1860,  12  U.  S.  Stats,  at  Large,  Ch.  179,  sec.  4; 
U.  S.  Rev.  Stats.,  sec.  4086. 
'■'  Sec.  51. 


372  I  EXTRATERRITORIAL  CASES. 

we  have  power  to  grant  such  relief  this  would  in  any  case 
include  the  lesser  one  of  legal  separation  or  divorce  a  ynensa 
et  thoro. 

We  cannot  think  that  the  testimony  here  presented  would 
justify  us  in  rendering  such  a  decree  as  would  enable  either 
of  the  parties  to  remarry.  There  is  evidence  in  the  record, 
uncontradicted,  of  statements  on  the  part  of  each  as  to  the 
motive  for  entering  into  this  particular  marriage  which  in 
our  judgment  discloses  the  lack  of  a  proper  conception  of, 
or  attitude  toward,  the  marriage  relation;  and  as  it  was  a 
second  experiment  with  each  we  think  the  interests  of 
society  will  best  be  subserved  by  leaving  them  hereafter  to 
remain  single. 

It  is  accordingly  considered  and  decreed  that  the  prayer 
of  plaintiff's  bill  be  denied  and  that  defendant  be,  and  he 
hereby  is,  granted  a  divorce  a  mensa  et  thoro  from  plaintiff 
and  that  a  legal  separation  between  plaintiff  and  defendant 
be  and  the  same  is  hereby  decreed  but  that  neither  party 
be  authorized  to  remarry. 

There  will  be  no  allowance  of  costs  to  either  party. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  John  M.  Gouldner. 

[Criminal  cause  No.  95;  filed  June  24,  1914.] 

United  States  v.  Thomas  C.  Walker. 

[Criminal  cause   No.   96;   filed  June   24,  1914.] 

SYLLABUS. 
(By   the   Court.) 

1.  EMBEZZLEMENT:    CONVERSION    is    an    essential    ingredient   of    the 

crime  of  embezzlement. 

2.  Id.  :  Conversion  is  not  effected  merely  by  selling  or  attempting  to 

sell,  tho  at  a  reduced  price,  goods  held  by  a  bailee  for  the  pur- 
pose of  sale. 

3.  Id.  :   Secreting  with  intent  to  convert  is  an  offense  distinct  from 

embezzlement  and  requires  clear  proof  of  such  intent. 

Frank  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  pros- 
ecution. 

Joseph  W.  Rice,  Esq.,  for  defendants. 


UNITED  STATES  V.  GOULDNER  ET  AL,,  JUNE  24,  1914.    373 
LOBINGIER,  J.: 

Defendants  have  been  committed  here  from  the  Consular 
Court  on  charges  of  embezzlement  of  "five  automobile  tires 
and  three  tire  inner  tubes  of  total  value  of  $150  United 
States  currency  and  three  typewriters  of  total  value  of 
$40."  The  prosecutions  are  brought  under  a  statute  pro- 
viding 

"That  if  any  bailee,  with  or  without  hire,  shall  embezzle,  or 
wrongfully  convert  to  his  own  use,  or  shall  secrete,  with  intent  to 
convert  to  his  own  use,  or  shall  fail,  neglect,  or  refuse  to  deliver, 
keep,  or  account  for,  according  to  the  nature  of  his  trust,  any  money 
or  property  of  another  delivered  or  intrusted  to  his  care  or  control, 
and  which  may  be  the  subject  of  larceny,  such  bailee,  upon  con- 
viction thereof,  shall  be  deemed  guilty  of  embezzlement."  ^ 

The  evidence  discloses  that  the  articles  above  mentioned 
were  delivered  by  the  owner  to  the  defendants  for  the  pur- 
pose of  sale.  As  regards  the  tires  and  tubes  the  defendants 
executed  to  the  owners  a  written  instrument  (Exhibit  A) 
by  which  the  former  agree  in  part  as  follows: 

"6.  The  proceeds  of  all  sales  made  by  us  shall  be  payable  to  you  at 
the  rates  of  your  price  list  current  at  the  end  of  the  month  less  the 
discount  as  arranged  within  the  month  following  that  in  which  the 
same  is  effected,  whether  their  value  is  realized  by  us  from  the 
purchaser  or  not. 

"7.  You  will  from  time  to  time  supply  us  with  copies  of  your  cur- 
rent price  lists  for  Motor  Cover  and  Tubes  and  we  will  bind  our- 
selves not  to  sell  at  lower  prices  than  those  specified  in  your  price 
lists  unless  in  special  cases  and  having  first  obtained  your  per- 
mission. An  infringement  of  this  clause  will  entitle  you  to  discon- 
tinue the  supply  of  goods  and  to  withdraw  the  consignment  stock 
on   hand." 

There  appears  to  have  been  no  corresponding  instrument 
with  reference  to  the  typewriters  but  the  arrangement  as  to 
these  is  described  as  follows  by  the  owners'  representative 
and  principal  witness  for  the  Government : 

Q.  Now  what  were  the  conditions  under  which  you  gave  possession 
of  these  typewriters  to  Mr.  Gouldner? 

A.  Mr.  Gouldner  thought  he  had  a  chance  to  sell  them  and  we 
sent  them  to  him  under  the  conditions  that  he  shall  sell  these  type- 

'Act  of  Congress  of  March  3,  1899,  Sess.  Ill,  30  U.  S.  Stats,  at 
Large,  Ch.  429,  Tit.  I,  sec.  47. 


374  I  EXTRATERRITORIAL  CASES. 

writers,  these  three  typewriters,  at  the  best  possible  price,  we,  the 
company,  to  get  twenty  taels  for  each  typewriter  and  the  difference 
between  Mr.  Gouldner's  selling  price  and  the  twenty  taels  was  the 
commission  for  Mr.  Gouldner. 

Q.  When  you  made  this  demand  on  the  20th  did  Mr.  Gouldner 
account  for  those  typewriters? 

A.  I  don't  know  exactly.  Mr,  Fleming  asked  Mr.  Gouldner  on  my 
behalf. 

Q.  But  you  know  at  present  these  typewriters  are  in  possession  of 
Sander,  Wieler  &  Company? 

A.  Yes,  sir. 

It  will  thus  be  seen  that  defendants  had  not  "converted 
to  their  own  use"  the  articles  in  question  merely  by  selling 
them  to  others  for  that  was  the  express  purpose  for  which 
they  were  delivered  to  the  defendants  by  the  owners.  Yet 
it  was  conceded  arguendo  by  the  attorney  for  the  prosecu- 
tion that  the  sole  act  alleged  to  constitute  conversion  of 
the  typewriters  was  the  sale  thereof  in  connection  with 
other  commodities  belonging  to  defendants'  business;  and 
as  to  the  tires  and  tubes  the  attempted  sale  thereof  to 
Mr.  Honigsberg.  So  long  as  defendants  did  nothing  more 
than  sell,  or  attempt  to  sell,  they  were  strictly  within  the 
limits  of  their  contract. 

There  is  indeed  testimony  that  the  tires  were  offered  to 
Mr.  Honigsberg  at  a  very  low  price  but  it  is  not  contended 
that  this  alone  would  constitute  conversion  and  besides 
there  is  no  evidence  as  to  the  price  ''specified  in  your  price 
lists"  as  recited  in  paragraph  seven  of  the  agreement 
quoted  above.  Without  such  evidence  we  would  clearly  not 
be  justified  in  finding  that  the  terms  of  said  paragraph  had 
been  violated ;  and  even  if  it  had,  the  last  sentence  thereof 
provides  its  own  remedy  by  making  such  an  act  a  ground 
for  terminating  the  arrangement.  We  have  been  cited  to 
no  authority,  and  have  been  unable  after  considerable 
search  to  find  any,  to  the  effect  that  a  sale  by  a  bailee  or 
consignee  at  a  low  price  constitutes  embezzlement.  At 
most  it  would  seem  to  effect  a  breach  of  the  contract  and 
the  criminal  element,  if  any,  would  arise  upon  a  failure 
to  account  for  the  full  value  after  the  sale — a  feature  which 
could  not  arise  in  these  cases  because  it  appears  from  the 
Government's  own  witness  that  all  the  articles  above  men- 
tioned have  been  returned  to  the  owners. 


UNITED  STATES  V.  GOULDNER  ET  AL.,  JUNE  2  4,  1914.    375 

"The  usual  evidence  given  of  the  appropriation  is,  that  having 
received  the  money,  etc.,  the  prisoner  denied  the  receipt,  or  accounted 
for  moneys  received  at  the  same  time,  or  after,  and  not  for  it,  or 
rendered  a  false  account,  or  practiced  some  other  deceit  in  order  to 
prevent  detection."^ 

Much  of  the  Government's  evidence  relates  to  suspicious 
movements  on  the  part  of  the  defendants  indicating  an 
intention  to  depart.  But  it  will  be  noticed  that  under 
clause  six  of  the  instrument  above  quoted  defendants  v^^ere 
required  to  account  for  "the  proceeds  of  all  sales"  only 
"within  the  month  following  that  in  which  the  same  is  ef- 
fected." As  all  of  the  transactions  in  question  occurred  dur- 
ing the  current  month  of  June  it  will  be  seen  that  defendants 
are  as  yet  under  no  obligation  to  account  and  there  is 
nothing  in  the  contract  which  provides  that  such  obligation 
shall  accrue  the  earlier  because  of  any  particular  conduct 
on  their  part.  The  acts  alleged  might  give  rise  to  a  civil 
attachment  but  they  certainly  fail  to  establish  the  elements 
of  the  crime  of  embezzlement. 

Defendants  would  not  yet  have  been  obliged  to  account 
even  had  they  retained  the  articles ;  the  latter  having  been 
returned  much  less  is  there  such  an  obligation. 

II. 

The  information  in  Cause  No.  96  besides  charging  em- 
bezzlement also  alleges  that  defendant  Walker  "did  felo- 
niously secrete,  with  intent  to  convert  to  his  own  use,"  the 
same  property.  This  is  a  distinct  offense  from  that  of  em- 
bezzlement. 

"That  is,  the  secreting  of  money  with  intention  to  convert  it  is 
not  embezzlement.  There  must  be  an  actual  appropriation  thereof. 
Under  an  information  charging  an  actual  embezzlement,  proof  of 
secreting  with  intent  to  embezzle  is  insufficient."  * 

The  evidence  in  support  of  this  part  of  the  charge  affects 
the  defendant  Walker  alone  and  is  conflicting.  The  prose- 
cution's theory  is  that  said  defendant  Walker  secreted  in 
Mr.  Honigsberg's  garage  the  tires  which  he  was  attempt- 
ing to  sell  to  the  latter.     Defendant  claims  on  the  other 

''Harris,  Criminal  Law  (Am.  ed),  186. 

'McAleer  v.  State,  46  Neb.,  116,  121,  64  N.  W.  Rep.,  358. 


376  I  EXTRATERRITORIAL  CASES. 

hand  that  he  merely  left  the  tires  there  with  the  understand- 
ing that  Mr.  Honigsberg  would  return  them.  Without  de- 
termining which  of  these  two  claims  receives  the  greater 
support  from  the  evidence  it  fails  in  our  judgment  to  show 
that  defendant  did  "secrete  with  intent  to  convert  to  his 
own  use"  or  that  what  he  did  was  more  than  in  promotion 
of  an  attempt  to  effect  a  sale;  and  this  as  we  have  seen 
was  clearly  within  the  terms  of  his  contract  and,  to  use  the 
language  of  the  statute  under  which  the  prosecution  is 
brought,  "according  to  the  nature  of  his  trust." 

On  the  whole  we  are  unable  to  find  that  the  evidence 
discloses  conversion  or  "attempt  to  convert"  and  as  this 
is  an  essential  element  of  the  offense  charged  we  have  no 
alternative  but  to  direct  an  acquittal  of  the  defendants  and 
a  dismissal  of  the  informations  at  the  cost  of  the  prose- 
cution. 

IT  IS   so   ORDERED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Elmer  Scogin. 

[Criminal  cause  No.  97;  filed  June  30,  1914.] 

SYLLABUS. 
(By  the  Court.) 

INFORMATION:  JURISDICTIONAL  AVERMENTS.  An  information  in  this 
court  which  fails  to  allege  defendant's  nationality  is  subject  to 
demurrer. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
James  B.  Davies,  Esq.,  for  the  defense. 

LOBINGIER  J.: 

A  demurrer  for  insufficiency  is  here  presented  to  an  in- 
formation charging  the  defendant  with  the  "unlicensed  sale 
of  intoxicating  liquors."  There  is  no  averment  as  to  the 
citizenship  of  the  defendant  nor  that  he  is  subject  to  the 
jurisdiction  of  this  court  and  the  demurrer  is  interposed 
for  the  absence  of  such  averment. 

This  is  one  of  the  courts  of  the  United  States  which  ^ 

'  11  Cyc,  845. 


UNITED  STATES  V.  SCOGIN,  JUNE  30,  1914.  377 

"are  of  limited,  but  not  inferior,  jurisdiction,  possessing  only  such 
powers  as  are  either  expressly  or  by  necessary  implication  conferred 
upon  them." 

This  would  seem  to  be  especially  true  of  this  court  which 
is  not  only  a  United  States  Court  but  is  the  successor  of 
the  consular  courts  which  have  been  declared  to  be  courts 
of  limited  jurisdiction.^ 

In  order  that  this  court  may  acquire  jurisdiction  over 
a  defendant  it  is  necessary  that  he  be  subject  to  American 
authority — not  necessarily  an  American  citizen  for  there 
are  those  like  Filipinos  and  Porto  Ricans  who  are  not  full 
citizens  but  still  subject  to  American  authority. 

Now  the  rule  is  well  settled  that 

"Where  the  jurisdiction  of  the  court  depends  on  the  citizenship 
of  the  parties  to  the  action  it  should  affirmatively  appear  in  the 
pleadings."  ^ 

If  this  be  true  in  a  civil  case  much  more  must  it  be  so 
in  a  criminal  proceeding  where  the  rules  of  pleading  are 
stricter  and  construed  in  favor  of  the  accused. 

Nor  can  we  see  that  such  a  rule  should  lead  to  any  real 
difficulties  in  the  administration  of  justice  in  this  court. 
It  cannot  exercise,  and  does  not  claim,  jurisdiction  over  any 
defendant  not  subject  to  American  authority  and  unless 
that  fact  can  be  established  as  regards  any  defendant  it 
is  useless  to  institute  a  proceeding  against  him.  It  certainly 
cannot  promote  the  due  administration  of  justice  to  in- 
stitute causes  which  at  some  stage  or  other  must  be  dis- 
missed for  lack  of  jurisdiction.  That  point,  if  it  be  in  the 
case  at  all,  must  be  met  some  time  and  the  best  time  to  meet 
it  would  seem  to  be  at  the  outset  before  either  party  has 
been  put  to  the  trouble  and  expense  of  a  hearing  on  the 
merits. 

It  should  hardly  be  necessary  to  add  that  we  are  not  here 
passing  on  the  burden  of  proof  or  the  degree  of  evidence 
required  in  order  to  show  citizenship.  We  are  simply  an- 
nouncing a  rule  of  pleading  and  we  have  considered  it 
elementary  that  as  against  a  demurrer  all  facts  necessary 
to  give  the  court  jurisdiction  must  be  alleged. 

'  The  Sparke  v.  Lee  Choi  Chun,  22  Fed.  Cases,  871. 
•11  Cyc,  875. 


378  I  EXTRATERRITORIAL  CASES. 

There  being  no  averment  in  the  information  before  us 
that  defendant  is  in  any  way  subject  to  the  jurisdiction  of 
this  court  the  demurrer  to  the  information  must  be 

SUSTAINED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Jurisdiction  over  Frank  Cecil  Bascom. 

[Civil  cause  No.  401;  filed  September  10,  1914.] 

SYLLABUS. 
(By  the  Court) 

1.  CITIZENSHIP:  DETERMINATION.     Whether  citizenship  may  be  deter- 

mined in  a  proceeding  like  this,  quaere. 

2.  Id.:  Evidence  reviewed  and  found  insufficient  to  overcome  defend- 

ant's positive  testimony  that  both  he  and  his  father  were  born 
in   America. 

3.  Id.:   The  Presumption  of  American  citizenship  arising  from  such 

evidence  of  birthplace  continues  until  overthrown  by  proof  of 
subsequent  alienage. 

F.  E.  Hinckleij,  Esq.,  (with  whom  was  /.  B.  Davies,  Esq.), 
for  the  Government. 

Joseph  W.  Rice,  Esq.,  contra. 

Lobingier,  J.: 

The  object  of  this  proceeding  appears  to  be  to  secure  an 
adjudication  as  to  the  citizenship  of  the  defendant.  In 
argument  the  proceeding  was  termed  a  "bill  quia  timet"  but 
it  fails  to  meet  the  requirements  of  such  a  bill  as  defined 
by  the  authorities. 

"There  were  two  distinct  kinds  of  bills  of  peace,"  says  Mr.  Pome- 
roy,^  "the  one  brought  for  the  purpose  of  establishing  a  general 
right  between  a  single  party  and  numerous  persons  claiming  distinct 
and  individual  interests,  and  the  other  for  the  purpose  of  quieting 
a  complainant's  title  to  land  against  a  single  advei'se  claimant.  In 
the  first  class,  the  original  jurisdiction  to  maintain  'bills  of  peace' 
or  'bills  quia  timet,'  properly  so  called,  will  only  be  exercised  where 
the  claims  of  the  numerous  individuals  have  some  community  of 
interest   in  the   subject-matter,   or   arise  from   a   common   title;    but 

'Equity  Jurisprudence  (Remedies),  Vol.  VI,  sec.  723.  Of.  4th  ed. 
I,  sec.  246. 


IN  RE  JURISDICTION  OF  BASCOM,  SEPT.  10,  1914.        379 

the  jurisdiction  has  been  enlarged  so  as  to  entertain  analogous  suits, 
where  the  community  of  interest  is  in  respect  merely  to  the  ques- 
tions involved  or  to  the  kind  of  relief  demanded." 

"A  bill  quia  timet  proceeds  to  the  extent  of  securing  rights  against 
an  invasion,  which  need  not  be  imminent  or  certain,  but  which  may 
be  only  future  and  contingent."^ 

The  author  continues  under  sec.  569  as  follows : 

"A  few  examples,  however,  of  bills  of  this  kind  will  assist  in 
making  clear  the  general  character  and  scope  of  this  equitable  remedy. 
In  a  case '  which  is  frequently  cited  as  an  illustration  of  bills  of  this 
class  the  plaintiff  assigned  several  shares  of  the  excise  in  Ireland  to 
the  defendant  and  the  latter  covenanted  'to  save  the  Lord  Ranelaugh 
harmless  touching  three  parts  of  a  farm,  assigned  to  Hayes,'  and  to 
stand  in  his  place  touching  the  pajrments  to  the  king  and  other  matters. 
Afterward,  the  king  sued  the  plaintiff  for  money  which  the  defendant 
ought  to  have  paid  and  the  former  then  filed  his  bill.  The  court 
decreed  that  the  agreement  should  be  specifically  performed  and  re- 
ferred it  to  a  master  with  the  direction  that  toties  quoties  any  breach 
should  happen  he  should  report  the  same  especially  to  the  court,  so 
that  the  court  might,  if  there  should  be  occasion,  direct  a  trial  at  law 
in  a  quantum  daTnnificatus.  The  court  further  decreed  that  the  as- 
signee should  clear  the  assignor  from  all  these  suits  and  encum- 
brances within  a  reasonable  time.  The  case  was  compared  to  that 
of  a  counter-bond,  where  altho  the  surety  is  not  molested  or  trou- 
bled for  the  debt,  yet  after  the  money  becomes  payable  the  court 
will  decree  the  principal  to  pay  it.  A  more  modern  example  of  the 
same  kind  of  relief  will  be  found  in  a  case  *  where  the  plaintiff,  who 
had  made  a  contributory  in  respect  of  certain  shares  of  a  joint  stock 
company,  which  was  being  wound  up  under  the  English  Companies 
Act  of  1862,  filed  a  bill  in  which  he  alleged  that  he  had  taken  the 
shares  under  an  arrangement  with  the  defendant  that  he  should  hold 
them  on  behalf  of  the  defendant,  and  deal  with  them  as  the  defendant 
should  direct,  and  that  the  defendant  should  indemnify  him  against 
all  loss  or  liability  which  he  might  incur  as  the  holder  of  the  shares. 
The  prayer  of  the  bill  was  that  the  defendant  might  be  ordered  to 
reimburse  to  the  plaintiff  all  sums  of  money  which  he  had  paid  for 
calls  and  all  costs  et  caetera  and  to  indemnify  him  against  all  liability 
in  consequence  of  his  being  made  a  contributory.  The  trust  having 
been  satisfactorily  established  by  the  evidence,  the  plaintiff's  right 
to  the  indemnity  was  treated  as  a  matter  of  course  and  a  decree  was 
made  accordingly." 

Nor  can  the  proceeding  be  treated  as  one  to  cancel  a 
certificate  of  citizenship  within  the  meaning  of  the  Act  of 

°  Bispham's  Principles  of  Equity   (7th  ed.),  sec.  568. 

'  Ranelaugh  v.  Hayes,  1  Vern.,  189. 

*  Hemming  v.  Maddick,  L.  R.,  7  Ch.,  395. 


380  I  EXTRATERRITORIAL  CASES. 

Congress  providing  that  remedy;  for  it  is  available  only 
where  such  a  certificate  has  been  granted  upon  a  petition 
for  naturalization,^  and  nothing  of  the  kind  is  claimed  to 
have  been  presented  by  the  defendant  at  any  time.  A 
certificate  of  registration  for  native  born  citizens  is  pro- 
vided for  by  the  Consular  Regulations."  There  no  provi- 
sion is  made,  as  in  other  cases,  for  cancelling  it  by  a  judicial 
proceeding;  that  remedy  is  left  entirely  in  the  hands  of 
the  Consul  or  the  Secretary  of  State. 

If,  however,  the  question  were  before  us  in  a  proper 
proceeding  we  would  be  unable  to  find  under  the  evidence 
that  the  defendant  is  not  an  American  citizen.  He  testifies 
under  oath  that  he  was  born  in  Salem,  Massachusetts  and 
that  his  father  was  likewise  a  native  born  American.  The 
defendant  seems  to  have  sworn  to  similar  statements  upon 
several  previous  occasions,  once  in  1908  (Exhibit  F)  in 
seeking  and  receiving  a  passport  from  the  Philippine  Gov- 
ernment and  again  in  1912  (Exhibit  B)  in  seeking  and 
obtaining  a  certificate  of  registration,  like  that  last  above 
mentioned,  from  the  American  Consulate  General  at 
Shanghai.  There  is  no  evidence  of  any  kind  which  even 
tends  to  contradict  the  defendant's  testimony  as  to  the 
piece  of  his  birth  or  to  indicate  that  he  was  born  elsewhere. 

It  is  true  that  defendant's  speech  is  marked  by  certain 
mannerisms  not  common  to  native  born  Americans  but  this 
appears  fully  to  be  accounted  for  by  the  conceded  fact  that 
he  has  been  more  than  half  ojf  his  life  in  the  Far  East 
in  close  association  with  those  of  other  nationalities. 

If  we  accept  defendant's  testimony  as  to  the  place  of 
his  birth  (and,  as  we  have  seen,  there  is  no  evidence  which 
w^ould  justify  us  in  rejecting  it)  we  must,  in  the  absence  of 
any  claim  or  showing  that  he  has  ever  transferred  his 
allegiance,  find  that  the  citizenship  acquired  by  such  birth 
continues  for  one  must  "be  regarded  as  a  citizen  of  his 
native  state  until  it  can  be  shown  that  he  has  acquired 

•Act  of  Congress  of  June  29,  1906;  Sess.  I,  34  U.  S.  Stats,  at 
Large,  Pt.  I,  Ch.  3592,  sec.  15. 

*  U.  S.  Consular  Regulations  (1896),  sec.  172,  as  amended  by 
Executive  Order  of  April  8,  1907. 


IN  RE  JURISDICTION  OF  BASCOM,  SEPT.   10,   1914.       381 

citizenship  elsewhere."  '  Moreover,  it  appears  to  be  un- 
questioned that  the  defendant  was  for  a  considerable  time 
in  the  Philippine  permanent  Civil  Service  where  the  qualifi- 
cation of  citizenship,  American  or  Philippine,  is  imperative. 

To  overcome  the  evidence  above  reviewed  the  Government 
offers  certain  letters  received  from  the  American  Consul 
General  at  Singapore  (Exhibit  H)  including  certain  papers 
purporting  to  be  extracts  from  the  official  records  of  the 
Federated  Malay  States.  In  one  of  the  letters  there  is  a 
statement  regarding  the  defendant  that  "it  was  understood 
that  he  was  a  British  subject."  The  letters,  of  course,  are 
m.ere  hearsay,  being  statements  by  one  not  called  as  a  wit- 
ness,^ but  even  if  competent  the  statement  quoted  purports 
to  be  nothing  more  than  a  rumor  and  would  be  clearly 
insufficient  as  a  basis  for  a  finding. 

The  so-called  extracts  from  the  records  (Exhibit  G) 
are  not  authenticated  by  any  proper  certificate  as  foreign 
public  records  are  required  to  be  in  order  to  render  them 
admissible  in  evidence.  Moreover,  the  notation  there  ap- 
pearing as  to  the  citizenship  of  the  defendant  does  not 
purport  to  emanate  from  him  nor  does  it  appear  by  whom 
01-  upon  whose  authority  they  are  made.  Clearly  they  are 
not  competent  evidence  against  the  defendant. 

The  same  may  be  said  as  regards  the  letter  (Exhibit  K) 
from  the  Philippine  Executive  Secretary  to  the  effect  that 
the  records  of  the  Philippine  Civil  Service  Bureau  failed 
to  show  the  existence  of  an  affidavit  by  the  mother  of 
defendant  which  the  latter  claims  to  have  filed  in  making 
application  for  a  Civil  Service  examination  in  1904.  The 
absence  of  such  an  affidavit  at  this  time  would  not  prove 
its  non-existence  ten  years  ago  and  his  place  of  birth  in  any 
event  seems,  as  we  have  seen,  sufficiently  established  with- 
out such  an  affidavit. 

Upon  the  whole  we  must  find  from  the  evidence  before 


''  7  Cyc,  147;  Hauenstein  v.  Lynham,  100  U.  S.,  483,  25  L.  ed.,  628; 
Minneapolis  v.  Reum,  56  Fed.,  57,  12  U.  S.  App.,  466,  6  C.  C.  A.,  31; 
Quinby  v.  Duncan,  4  Harr.  (Del.),  383;  State  v.  Salge,  1  Nev.  455. 
But  see  Coxe  v.  Gulick,  10  N.  J.  L.,  328. 

'  Wigmore,  Evidence,  II,  sec.  1360  et  seq. 


382  I   EXTRATERRITORIAL  CASES. 

US  that  there  is  nothing  sufficient  to  justify  this  Court  in 
withholding  its  jurisdiction  from  the  defendant.  It  is 
hardly  necessary  to  add  that  such  finding  is  restricted 
to  the  proceeding  before  us  and  is  not  intended  to  affect 
any  other  proceeding,  administrative  or  otherwise,  to  de- 
termine the  question  of  citizenship. 

The  prayer  of  the  bill  so  far  as  inconsistent  with  such 
finding  is  accordingly  denied  and  the  proceedings  dismissed 
al:  the  Government's  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Frank  Cecil  Bascom. 

[Cause  No.  402;  filed  September  26,  1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  EMBEZZLEMENT:    CONVERSION   is   an   essential   ingredient   of   the 

crime  of  embezzlement. 

2.  MORTGAGES:   DEPOSIT  OF  TITLE  DEEDS.     Under  the  English  law  a 

mortgagee  by  the  deposit  of  title  deeds  may  repledge  them  by 
way  of  submortgage  and  the  mortgagor  may  redeem  them  from 
the  submortgagee  by  paying  the  amount  of  the  original  debt. 

3.  Id.:    Id.:   Locus.     The  English  law  and  practice  governing  such 

mortgages  appears  to  prevail  in  the  International  Settlement  of 
Shanghai. 

4.  Id.:  Id.:  Conveirsion.     Since  the  original  mortgagee  has  the  right 

of  repledge  his   exercise  thereof  cannot   constitute   conversion. 

5.  Id.  :  Id.  :  The  "Concealment"  mentioned  in  the  Act  of  Congress  of 

March  3,  1901,  must  be  one  "whereby  the  estate,  or  right  of 
such  other  person  shall  or  may  be  defeated,  injured  or  altered." 

6.  Id.:    Id.:    Repledging.     Such  result  is  not  effected  by  merely  re- 

pledging  title  documents. 

7.  FALSE  PRETENSES:    Evidence  examined  and  found  insufficient  to 

show  the  crime  of  false  pretenses. 

8.  Id.  :  Joinder.     "Whether  the  two  crimes  here  charged  may  be  joined 

in  one  complaint,  quaere. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
Joseph  W.  Rice,  Esq.,  for  defense. 

Lobingier,  J.: 

This  is  a  prosecution  for  "Embezzlement  and  False  Pre- 
tenses."    The  information  charges  that  defendant 


UNITED  STATES  V.  BASCOM,  SEPT.  26,  1914.  383 

"having  received  from  Chen  Lai-ming  one  land  title  deed,  one 
declaration  of  trust  and  one  undertaking  to  transfer,  said  three 
documents  showing  and  being  necessary  to  show  said  Chen  Lai- 
ming  owner  of  land  situate  at  Shanghai,  China  and  there  reg- 
istered as  British  Consular  Lot  No.  7986,  and  having  so  received 
said  documents  to  be,  and  accepted  them  for  security  for  a  loan 
of  Shanghai  Sycee  Taels  8,000,  and  interest  thereon  by  him  made 
for  and  from  himself  to  said  Chen  Lai-ming  on  mutual  under- 
standing and  agreement  that  said  documents  were  to  be  held  by 
him  as  such  security  during  the  term  of  said  loan  and  pending 
repayment  to  him  of  said  loan  and  payment  to  him  of  said  interest 
and  notwithstanding  tender  of  repayment  at  the  close  of  the  term 
and  payment  of  instalments  and  tender  Qf  full  payment  of  said 
interest,  notwithstanding  having  so  received  said  documents  and  in 
place  of  so  holding  them,  giving  them  for  his  own  gain  and  for 
security  for  a  loan  to  him  of  Shanghai  Sycee  Taels  10,000,  and 
obtaining  said  last  stated  loan  on  the  basis  of  so  giving  said  docu- 
ments into  the  possession  and  control  of  the  business  firm  at 
Shanghai,  China,  known  as  the  Societe  Franco-Chinoise  de  Credit, 
and  so  giving  them  without  the  knowledge  and  consent  of  said 
Chen  Lai-ming  and  contrary  to  said  mutual  understanding  and  agree- 
ment and  deceiving  and  defrauding  said  Chen  Lai-ming  by  false 
representations  relating  to  the  return  of  said  documents  to  said  Chen 
Lai-ming  at  and  subsequent  to  the  close  of  the  term  of  said  loan 
to  said  Chen  Lai-ming,  said  documents  being  writings  whereby  the 
estate  and  right  of  said  Chen  Lai-ming  shall  and  may  be  defeated, 
injured  and  altered,  the  same,  with  intent  to  defraud  and  injure 
said  Chen  Lai-ming,  did  wilfully,  unlawfully,  wickedly  and  feloniously 
conceal,  convert  to  his  own  use  and  embezzle:  Against  the  laws 
of  the  United  States." 

From  the  evidence,  all  of  which  was  produced  by  the 
Government,  it  appears  that  on  January  19,  1914,  the  de- 
fendant made  a  loan  to  one  Chen  Lai-ming,  the  transaction 
being  evidenced  by  an  instrument  of  which  the  following 
is  a  copy  (Exhibit  I)  : 

"This  deed  is  made  the  19th  day  of  January,  One  Thousand  Nine 
Hundred  and  Fourteen,  between  Chen  Lai-ming  (Chinese  characters) 
of  Shanghai  hereinafter  called  the  Borrower  (which  expression 
shall  be  deemed  to  include  his  heirs  and  administrators)  and  Frank 
Cecil  Bascom  of  Shanghai  hereinafter  called  the  Mortgagee  (which 
expression  shall  be  deemed  to  include  his  heirs  and  administrators). 

Now  this  deed  witnesseth  that  in  consideration  of  the  sum  of 
Shanghai  Taels  Eight  Thousand  (8,000)  now  paid  to  the  Borrower 
by  the  Mortgagee,  receipt  whereof  is  hereby  acknowledged,  the  Bor- 
rower hereby  covenants  with  the  Mortgagee  to  pay  to  the  Mortgagee 
on  the  19th  of  July,  1914,  the  sum  of  Eight  Thousand  Taels  together 


384  I  EXTRATERRITORIAL  CASES. 

with  interest  at  the  rate  14%  per  month.  And  this  deed  also  wit- 
nesseth  in  further  pursuance  of  this  agreement  the  Borrower  as 
beneficial  owner  doth  hereby  grant,  assign  and  convey  unto  the 
Mortgagee  all  the  piece  of  land  contained  in  B.  C.  Lot  No.  7986 
together  with  the  house  and  other  buildings  erected  thereon  provided 
always  that  if  the  Borrower  shall  on  the  19th  day  of  July,  1914, 
pay  to  the  Mortgagee  the  said  sum  of  Shanghai  Taels  Eight  Thou- 
sand with  interest  thereon  in  the  meantime  at  the  rate  aforesaid, 
the  Mortgagee  shall  reassign  to  the  Borrower  all  his  rights  in 
B.  C.  Lot  No.  7986  and  the  buildings  thereon. 

It  is  expressly  agreed  that  should  the  said  sum  of  Shanghai  Taels 
Eight  Thousand  not  be  repaid  to  the  Mortgagee  by  the  19th  day 
of  July,  1914,  the  Mortgagee  shall  have  the  right  to  sell  forthwith 
the  said  land  contained  in  B.  C.  Lot  No.  7986  together  with  the 
buildings  thereon,  and  it  is  further  agreed  that  seven  days'  notice 
shall  be  given  of  the  Borrower's  intention  to  repay  the  said  loan, 
but  this  cannot  in  any  case  be  done  before  the  19th  day  of  July,  1914. 

It  is  further  agreed  that  all  interest  be  payable  on  the  19th  of 
every  month. 

In  witness  whereof  the  parties  to  these  presents  have  herewith 
set  their  hands  the  day  and  year  first  above  written. 

Signed,  Sealed  and  Delivered  by  the  said  Chen  Lai-ming  in  the 
presence  of  S.  Hueng.     C.  C.  Almeeda. 

Signed,  Sealed  and  Delivered  by  the  said  Frank  C.  Bascom  in 
the  presence  of  S.  Hueng.    C.  C.  Almeeda." 

At  the  same  time  and  as  a  part  of  the  transaction  the 
borrower  delivered  to  defendant  certain  documents,  viz., 
one  termed  a  title  deed  (Exhibit  A)  another,  styled  a  de- 
claration of  trust  (Exhibit  B),  executed  by  one  C.  J.  White 
the  registered  owner  and  reciting  that  he  held  the  land  in 
trust  for  the  borrower,  an  insurance  policy  covering  build- 
ings on  the  premises  and  an  estimate  of  valuation.  The  fol- 
lowing letter  (Exhibit  C)  was  also  received  from  said 
registered  owner: 

"January  17th,  1914. 
F.  C.  Bascom,  Esq., 

No.  25-A  Kiangse  Road. 

B.   C.   LOT   NO.    7986. 

Dear  Sir: 

I   have   pleasure    in    informing   you,   by    authority   of    Mr.    Chun 
Lai   Ming    (Chinese  characters)    the   owner  of  B.   C.   Lot  No.   7986, 
that  I  will  transfer  to  you  or  your  legal  representative  at  any  date 
subsequent  to  July  19th,  1914,  the  said  Lot  No.  7986. 
Yours  truly, 

(Sgd.)     C.  J.  White." 


UNITED  STATES  V.  BASCOM,  SEPT.  2  6,  1914.     385 

It  appears  that  while  defendant  was  conducting  the  ne- 
gotiations for  this  loan  with  the  borrower  he  himself  was 
likewise  arranging  for  a  loan  from  an  institution  known 
as  Societe  Franco-Chinoise  de  Credit  and  that  on  the  same 
date,  to  wit,  January  19,  1914,  he  obtained  from  it  a  loan 
of  Taels  10,000  evidencing  the  same  by  an  instrument  of 
which  the  following  is  a  copy  (Exhibit  F)  : 

CONTRE-LETTRE. 
Declaration  of  Trust. 

Je,    soussigne,    notifie    a    tous    ceux    qui    ces    presentes    verront, 
Know    all    men    to    whom    these    presents    shall    come, 
que    la    parcelle    de    terrain    situee  I  „,  ,  1     e* 

that     the     lot     of     land     situated    f^^^^'^    ^^     Sooehow    Creekj^nd 

enregistree     sous     mon     nom     au     consulat     rfe  I  _   .^.  ,       ^ 

•  .       J   .  ^  ^,  (  British     Consulate 

registered  in  my  name  at  the  J 

"^    I   ou        T.   ■    I   ^'^"s  le  numero    \  nana  I  (Seven  thousand  nine  hun- 
at  I   Shanghai,  \   ^g  j^^  number    /  '^^^  t        dred   and   eighty-six) 

et  contenant        1     7   (Seven)   Mow,  no  Fun,  3   (Three)    li,  8   (Eight) 
and  containing   J 

haou  1^^*  '**  Wopriete  de    I  g^^^^^^  Franco-Chinoise  de  Credit. 
(is  the  property  of   ) 
Et  je   m'engage    par   les   presentes    a    transferer   cette    propriete 
And   I   hereby  agree  to  transfer   same  at  his   request, 

d  lui  ou  a  ses  ayant  cause,  ou  a  telle  personne  qui  me  sera  designee 

when  called  to  do  so,  on  return  of  this  document. 

par  lui  on  ses  ayant  cause,  des  qu^  j'en  serai  requis, 

et    que    le    present    document    me    sera    retourne.     Je    declare    en 

I    have    no 
outre    n'avoi/r    sur    ledit    terrain    aucun    droit    ni    en    vertu    d'un 
claim   against   the   said   lot  of   land   in    respect   to   money   advanced 
pret  ni  pour  quelque  cause  que  ce  soit. 
or  otherwise. 

Shanghai,  le  Janvier   19,   1914. 

F.  C.  Bascom. 

Defendant  also  delivered  to  his  lender  the  title  deed, 
declaration  of  trust,  insurance  policy  and  estimate  of 
valuation  which  he  had  received  from  his  borrower. 

The  lender's  agent  states  (Dep.  p.  16)  that  ''there  were 
no  representations  made  to  him"  and  the  defendant's  bor- 
rower in  describing  how  he  came  to  obtain  the  money  tes- 
tified that  "defendant's  compradore  told  him  that  his 
employer  had  money  to  loan  *  *  *.  He  did  not  know 
whose  money  it  was  but  he  only  knew  that  Mr.  Bascom  was 
to  get  the  money." 

14008  O.  W. 25 


386  I  EXTRATERRITORIAL  CASES. 

The  loan  of  Taels  10,000  was,  by  its  terms,  to  run  for 
six  months  but  on  June  25  it  was  taken  up  and  cancelled 
and  a  new  loan  for  Taels  14,000  issued  to  defendant  with  a 
term  of  two  months.  As  early  as  July  5  defendant's  bor- 
rower seems  to  have  taken  steps  toward  the  repayment  of 
his  loan,  his  promptness  being  due  apparently  to  the  fact 
that  he  had  arranged  to  obtain  another  loan  elsewhere  at 
a  lower  rate  of  interest.  It  was  then  discovered  that  de- 
fendant was  not  anxious  to  terminate  the  arrangement.  In 
fact  he  suggested  an  extension  and  offered  to  increase  the 
amount.  This  not  being  satisfactory  to  the  borrower  fur- 
ther attempts  were  made  to  bring  the  matter  to  a  head,  the 
defendant  each  time  offering  some  excuse  and  finally  stat- 
ing that  the  title  documents  were  in  the  hands  of  one  A. 
Strauss,  vvho  was  stated  to  have  been  called  to  the  German 
colors.  Finally  the  borrower  learned,  just  how  it  does  not 
appear,  that  the  documents  were  in  the  possession  of  de- 
fendant's lender  above  mentioned,  and  on  August  18,  1914, 
the  borrower  commenced  suit  in  this  court  by  bill  in  equity 
for  the  specific  performance  of  defendant's  undertaking  to 
reconvey  and  praying  for  the  return  of  the  documents. 
To  this  bill  no  appearance  was  made  and  on  September  22, 
1914,  a  decree  pro  confesso  was  entered  requiring  defendant 
to 

"Comply  with  his  contract  of  January  19,  1914  (a  copy  of  which 
is  attached  to  the  transcript  of  said  testimony  and  marked  'Plaintiff's 
Exhibit  I'),  by  executing  an  instrument  of  conveyance  reassigning 
to  the  plaintiff  herein  all  the  said  defendant's  rights,  title  and 
interest  in  B.  C.  Lot  No.  7986  registered  in  H.  B.  M.'s  Consulate 
General  at  Shanghai,  China,  and  that  the  said  defendant  deposit  with 
the  clerk  of  this  court  all  papers  and  documents  relating  to  or 
affecting  the  title  to  said  property  and  now  in  the  possession  of 
said  defendant  or  under  his  power  or  control,  all  of  the  same  to  be 
delivered  to  plaintiff  upon  his  depositing  with  the  said  Clerk  the 
sum  of  eight  thousand  Shanghai  Sycee  taels  (8,000)  with  inter- 
est thereon  as  alleged  in  said  bill  up  to  July  19,  1914,  less  any 
amount  of  interest  lost  by  plaintiff  as  alleged  in  Paragraph  5  of 
said  bill;  and  that  plaintiff  recover  his  costs  herein." 

II. 

The  first  question  to  be  determined  is  whether  under  the 
facts  above  set  forth  defendant  is  guilty  of  the  crime  of 
embezzlement.     It  will  be  seen  that  the  information  charges 


UNITED  STATES  V.  BASCOM,  SEPT.  26,  1914.     .3g7 

that  defendant  did  "convert  to  his  own  use,"  etc.  Con- 
version, as  we  have  recently  had  occasion  ^  to  point  out, 
is  an  essential  ingredient  of  the  crime  of  embezzlement. 

It  will  also  be  noticed  that  the  information  alleges  that 
the  defendant  "received  said  documents  to  be  and  accepted 
them  for  security  for  a  loan  *  *  *  on  mutual  under- 
standing and  agreement  that  said  documents  were  to  be 
held  by  him  as  such  security  during  the  term  of  said  loan 
and  pending  repayment  to  him  of  said  loan,"  etc.  It  seems 
evident  that  the  conversion  here  charged  is  alleged  to  con- 
sist in  a  breach  of  such  "mutual  understanding  and  agree- 
ment ;"  yet  there  is  no  evidence  that  defendant  ever  promised, 
or  that  the  borrower  ever  required,  that  the  former  should 
retain  possession  of  the  documents  "during  the  term  of  said 
loan  and  pending  repayment."  The  express  agreement  of 
the  parties  appears  to  be  embodied  entirely  in  the  instru- 
ment (Exhibit  I)  first  above  quoted  and  that,  as  we  have 
seen,  merely  requires  that  "the  mortgagee  shall  reassign  to 
the  borrower  all  his  rights  in  B.  C.  Lot  No.  7986  and  the 
buildings  thereon." 

It  is  further  to  be  observed  that  this  instrument  (Exhibit 
I)  differs  in  at  least  one  particular  from  the  ordinary  mort- 
gage deed  in  use  elsewhere  which  usually  contains  a  clause 
vesting  the  title  in  the  mortgagee  followed  by  another  clause 
rendering  the  first  void  if  payments  shall  be  made  according 
to  the  instrument  of  indebtedness.  Here,  however,  the  in- 
strument, after  making  an  absolute  conveyance,  provides 
that  "if  the  borrower  shall,  on  the  19th  of  July,  1914,  pay 
to  the  mortgagee  the  said  sum  of  Shanghai  Taels  8,000 
with  interest  thereon  the  mortgagee  shall  reassign,"  etc. 
In  other  words  while  the  ordinary  mortgage  is  a  deed  upon 
condition  precedent,  this  appears  to  be  one  upon  condition 
subsequent.'  Thg  point  is  important  only  as  bearing  upon 
the  form  which  the  security  took  and  the  steps  necessary 
to  revest  title  in  the  borrower.     The  instrument  v/as  un- 


'  U.  S.  V.  Gouldner;  U.  S.  v.  Walker,  ante,  p.  372. 

^  "Conditions  are  therefore  either  precedent  or  subsequent.  Pre- 
cedent are  such  as  must  happen  or  be  performed  before  the  estate 
can  vest  or  be  enlarged :  subsequent  are  such,  by  the  failure  or 
non-performance  of  which  an  estate  already  vested  may  be  defeated." 
Blackstone,  Commentaries,  II,  154. 


388  I  EXTRATERRITORIAL  CASES. 

doubtedly  intended  to  be,  and  is,  a  mortgage ;  but  instead 
of  creating  a  mere  lien,  as  the  ordinary  mortgage  does, 
it  would  seem  to  effect  a  transfer  of  the  title  to  the  defend- 
ant with  the  obligation  on  his  part  to  reconvey  upon  the 
payment  of  the  debt.  Such  a  mortgage,  it  would  seem, 
could  not  be  discharged  by  a  mere  release  as  in  ordinary 
cases  and  would  require  an  actual  reconveyance;  but  on 
the  other  hand  such  a  reconveyance  would  seem  prima  facie 
sufficient  to  restore  the  borrower  in  statu  quo. 

Such,  then,  is  the  express  agreement  of  the  parties  and, 
as  we  have  seen,  it  contains  nothing  which  required  defend- 
ant to  retain  continuous  possession  of  the  documents.  It  is, 
however,  contended  and  the  information  seems  to  be  framed 
upon  the  theory  that  such  retention  was  at  least  implied. 
But  if  the  delivery  of  these  documents  to  defendant  had 
any  effect  at  all  it  was  to  constitute  what  is  known  in 
Anglo-American  law  as  a  "mortgage  by  the  deposit  of  title 
deeds."  This  appears  to  be  quite  a  common  practice  in 
England  tho  it  is  but  little  used  in  America  because 
it  is  there  held  insufficient  to  satisfy  the  Statute  of  Frauds 
and  also  because  it  does  not  conform  well  to  the  system  of 
registration  prevalent  in  the  latter  country.  The  leading 
American  authority  on  the  law  of  mortgages  observes : 

"An  equitable  mortgage  may  at  common  law  be  created  by  deposit 
of  the  title  deeds  of  a  legal  or  an  equitable  estate  as  security  for 
the  payment  of  money.  This  method  of  creating  a  lien  upon  land 
is  of  frequent  use  in  England  and  is  sometimes  adopted  in  the 
United  States.  *  *  *  j^  England,  in  the  absence  of  a  general 
system  of  recording,  the  possession  of  the  title  deeds  of  an  estate 
is  evidence  of  title.  A  transfer  cannot  be  made  without  them.  No 
one  is  supposed  to  have  the  right  to  retain  them  unless  he  has  a  legal 
or  equitable  claim  to  the  estate  they  represent.  In  all  transfers  of 
real  estate  the  original  deeds  go  with  the  property  as  evidences  of  title 
and  their  examination  by  the  solicitor  of  the  parties  is  a  prerequisite 
to  every  sale.  Except  in  the  counties  of  Middlesex  and  York  there 
are  no  registries  where  search  can  be  made  to  ascertain  the  titles 
to  lands,  with  the  exception  of  copyhold  titles,  which  are  always 
to  be  found  recorded  in  the  manor  courts.  The  only  security  which 
the  purchaser  has  for  the  validity  of  his  grantor's  title  is  pos- 
session of  the  deeds  which  establish  it. 

In  the  United  States,  however,  the  reason  for  this  doctrine  does 
not  exist.  The  registry  system  dispenses  with  the  necessity  of  any 
production  of  title  deeds  and  supplies  all  the  evidence  to  protect 
both    vendor    and    vendee.     It    furnishes    at   once    a    true    statement 


UNITED  STATES  V.  BASCOM,  SEPT.  26,  1914.     389 

of  the  present  condition  of  all  legal  rights  to  land;  and,  if  an 
original  conveyance  is  ever  lost  or  destroyed,  a  copy  from  the  record 
is  received  as  an  equivalent."* 

It  appears  from  the  testimony  of  Mr.  Gregson,  English 
barrister  and  one  of  the  government's  witnesses,  that  this 
practice  is  in  vogue  in  Shanghai  and  that  it  is  common  to 
secure  loans  by  delivering  the  title  documents  relating  to 
the  property  pledged.  It  seems  also  to  be  employed  not 
only  by  foreigners  but  among  Chinese  in  transactions  inter 
se.*  Moreover  in  the  case  at  bar  v^e  are  dealing  not  only 
with  an  English  practice  adopted  in  this  International  Set- 
tlement but  also  with  a  tract  of  land  registered,  as  we  have 
seen,  in  the  British  Consulate.  Under  one  notable  deci- 
sion ^  of  H.  B.  M.'s  Supreme  Court  this  would  bring  all 
controversies  involving  said  land  within  the  exclusive  pale 
of  English  law.  And  while  that  decision,  it  seems,^  no 
longer  holds,  the  one  displacing  it  clearly  recognizes  that 
the  adoption  of  English  legal  practices  in  China  carries 
with  it  the  English  law  pertaining  thereto  ^  and  that  the 
law  governing  realty  in  China  is  Chinese  law  and  not  that 
of  some  foreign  country.  Besides  the  English  law  on  this 
subject  is  likewise  our  own  and  it  is  well  settled  that,  in 
the  absence  of  proof  to  the  contrary,  foreign  law  is  pre- 
sumed to  oe  the  same  as  our  own.^     No  evidence  has  been 

'Jones,  Mortgages  (7th  ed.),  I,  179.     Cf.  sec.  185. 

'  Thus  in  a  recent  case  decided  by  H.  B.  M.  Supreme  Court,  a 
Chinese  family  "being  hard  pressed  for  funds  in  their  banking 
business,  applied  to  Ch'en  Yih-tsai,  who  w^as  acting  on  behalf  of  a 
syndicate  of  Chinese  bankers,  for  a  loan  on  the  security  of  these  lots. 
Ch'en  Yih-tsai  thereupon  lent  to  the  undivided  family  Tls.  530,000,  on 
receiving  from  them  the  title-deeds  and  declarations  of  trust  as  above, 
and  a  memorandum  of  equitable  mortgage."  Per  BouRNE  J.  in  re 
certain  Trusts,  North  China  Herald,  vol.  CXII,  p.  66,  (July  4,  1914). 

^  Hanson  v.  Watson,  North  China  Herald,  Oct.  8,  1899,  per  Hannen, 
C.  J. 

"  Macdonald  v.  Anderson,  ante,  p.  77;  citing  Secretary  of  State  for 
Foreign  Affairs  v.  Charlesworth  Pilling  &  Co.,  ante,  p.  66. 

'  "A  gTeat  deal  of  English  law^  has  been  uniformly  followed  for 
half  a  century  by  His  Majesty's  subjects  in  China,  and  has  thus 
acquired  the  force  of  Chinese  law,  e.  g.,  testamentary  disposition  of 
land  in  China  according  to  the  English  form,  and  English  forms  in 
conveyancing."     Bourne  J.  in  Macdonald  v.  Anderson,  ante,  p.  77. 

*  Bahlke  v.  Brown,  ante,  p.  340. 


390  I  EXTRATERRITORIAL  CASES. 

offered  here  as  to  what  is  the  Chinese  law — if,  indeed,  there 
is  any — governing  mortgages  by  the  deposit  of  title  deeds ; 
and  in  order  to  determine  the  legal  effect  of  the  delivery 
of  these  documents  in  the  case  at  bar  and  the  obligation 
which  defendant  assumed  with  respect  to  the  same  we  must 
resort  to  the  law  of  England  which  is  also  the  law  of  the 
forum. 

Now  the  lav/  of  England,  far  from  requiring  the  mort- 
gagee by  deposit  of  title  deeds  to  retain  possession  thereof, 
clearly  recognizes  his  right  to  repledge  them.  Says  the 
leading  English  text-writer  on  this  subject : 

"A  mortgagee  may  assign  the  mortgage  debt  and  the  securities 
for  the  same  to  another  person  by  way  of  sub-mortgage     *     *     * 

"Debts  secured  by  mortgage  are  often  the  subject  of  assignments 
by  way  of  mortgage  which  are  termed  sub-mortgages. 

"A  legal  mortgagee  may  make  a  legal  or  an  equitable  sub-mortgage, 
and  an  equitable  m.ortgagee  by  deposit  of  deeds  may  create  an 
equitable  sub-mortgage,  by  depositing  the  deeds  with  a  third  person, 
altho  he  does  not  deliver  over  the  memorandum."  * 

In  argument  it  was  urged  in  behalf  of  the  prosecution 
that  this  practice  was  permissible  only  with  the  consent  of 
the  mortgagor.  On  the  contrary,  however,  the  editor  of 
the  English  notes  to  the  English  Ruling  Cases  i"  observes : 

"It  is  well  settled  that  for  the  purpose  of  an  assignment  of  a 
mortgage  debt  and  the  securities  for  the  same  the  concurrence  or 
consent  of,  or  even  notice  to,  the  mortgagor,  is  not  necessary." 

Indeed  the  duty  of  notifying  the  original  mortgagor  ap- 
pears to  belong  to  the  submortgagee  rather  than  to  the 
mortgagee  and  to  the  former  mainly  for  self  protection. 
For  the  English  doctrine  seems  to  be  well  settled  that  in  the 
absence  of  notice  to,  and  consent  by,  the  mortgagor  the 
submortgage  by  deposit  of  title  deeds  binds  him  only  to 
the  extent  of  the  original  debt."     It  is  even  held  ^'-  that 


*  Coote,  Mortgages,  837,  848  &  849. 

'"  Vol.  18,  p.  254,  citing  Jones  v.  Gibbon,  9  Ves.  411. 

"Coote,  Mortgages  (7th  ed.),  p.  849;  Mathews  v.  Wallwyn,  4 
Ves.  118;  English  Ruling  Cases,  Vol.  18,  244;  Ex  Parte  Tuftnel,  4 
D.  &  C,  29. 

''■  English  Ruling  Cases,  Vol.  18,  p.  255;  Mathews  v.  Wallwyn, 
4  Ves.  118;  Williams  v.  Sorrell  (1799),  4  Ves.  389;  Re  Lord  South- 
ampton's Estate,  Allen  v.  Lord  Southampton  (1880),  16  Ch.  D.,  178, 
50  L.  J.  Ch.,  218,  43  L.  T.,  687,  29  W.  R.,  231. 


UNITED  STATES  V.  BASCOM,  SEPT.  26,  1914.     391 

"All  payments  made  by  the  mortgagor  to  the  original  mortgagee 
after  assignment  and  before  notice  would  be  valid  and  binding  on 
the  assignee." 

It  seems  clear  then  that  under  the  English  rule  (which 
would  also  be  the  American  where  the  practice  of  submort- 
gaging  is  followed)  the  defendant  was  not  required  to  re- 
tain possession  of  the  title  documents  but  had  the  legal 
right  to  repledge  them  and  that  the  mortgagor  could  re- 
claim the  documents  by  paying  the  submortgagee  the 
amount  of  the  original  debt  at  its  maturity.  Such  being 
the  legal  situation  where  may  we  locate,  in  this  transaction, 
the  conversion  which,  as  we  have  seen,  is  an  essential  in- 
gredient of  the  crime  of  embezzlement?  Defendant  was 
clearly  not  converting  these  documents  by  exercising  his 
legal  right  of  repledging  them.  That  he  may  have  believed 
that  he  was  doing  something  reprehensible  and  which  it 
v/as  necessary  for  him  to  conceal  from  the  mortgagor  does 
not  alter  the  case  if  he  had  a  legal  right  to  do  it ;  and  if  he 
had  boldly  asserted  that  right  instead  of  temporizing,  pro- 
ciastinating  and  prevaricating,  as  he  seems  to  have  done, 
he  would  stand  in  a  much  better  position  before  the  public. 

But  we  have  been  cited  to  no  authority  and,  after  con- 
siderable search,  have  found  none,  to  the  effect  that  the 
repledging  of  title  deeds,  delivered  by  way  of  mortgage, 
constitutes  embezzlement.  The  bankruptcy  case  ^-^  cited  by 
the  prosecution  was  one  where  stock-certificates  (person- 
alty) were  pledged  under  an  agreement  to  use  them  for  a 
particular  purpose  which  was  not  observed.  There  was  no 
such  agreement  in  this  case  and  the  implied  right  of  re- 
pledging was,  therefore,  unlimited. 

III. 

But  the  information  also  charges  that  defendant's  acts 
above  set  forth  contravene  the  following  provision : 

"Whoever,  with  intent  to  defraud  or  injure  another  person,  shall 
take  away  or  conceal  any  writing  whereby  the  estate  or  right  of 
such  other  person  shall  or  may  be  defeated,  injured,  or  altered  shall 
suffer  imprisonment  for  not  more  than  seven  years."  " 

"  In  re  Mclntyre  &  Co.,  181  Fed.  955. 

''••  Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats.  a:t  Large,  Sess. 
II,  Ch.  854,  sec.  840. 


392  I   EXTRATERRITORIAL   CASES. 

It  is  earnestly  contended  that  this  section  modifies  the 
commonly  accepted  definition  of  embezzlement  and  that  as 
defendant  "concealed"  the  documents  in  question  he  has 
infringed  its  terms.  Notwithstanding  the  ingenious  argu- 
ment of  defendant's  counsel  to  the  contrary  we  are  disposed 
to  agree  with  the  prosecution  that  defendant  did  "conceal" 
the  said  documents.  We  can  place  no  other  interpretation 
upon  his  dilatory  tactics  and  his  misleading  statement  that 
the  documents  were  in  the  hands  of  another  party  than 
the  submortgagee.  But  a  mere  reading  of  the  section  will 
disclose  that  concealment  alone  is  not  sufficient;  the  writing 
must  be  so  concealed  that  "the  estate  or  right  of  such  other 
person  shall  or  may  be  defeated,  injured  or  altered."  Hence 
before  we  can  convict  the  accused  under  this  section  we 
must  find  that  the  borrower's  "estate"  (i  e.,  interest  in  the 
land)  was  thus  affected. 

If  our  previous  conclusions  are  correct  it  certainly  can- 
not be  said  that  any  of  these  results  will  follow ;  for  under 
the  English  law,  as  we  have  seen,  the  submortgage  merely 
operates  as  an  assignment  of  the  original  mortgage,  which 
may  be  redeemed  by  the  mortgagor  upon  paying  his  debt. 
If,  therefore,  the  English  law  covers  che  transaction  and  if 
under  said  law  the  status  of  the  borrower  was  not  changed 
thereby  we  could  not  find  from  the  evidence  before  us  that 
his  "estate  *  *  *  shall  or  may  be  defeated,  injured  or 
altered." 

It  may  be  urged,  indeed,  that  this  interpretation  will 
throw  the  loss,  if  there  be  any,  on  the  Societe  which  loaned 
the  accused  Taels  6,000  in  addition  to  what  is  required  from 
the  mortgagor  in  order  to  redeem.  But  we  cannot  assume 
in  advance  and  without  evidence  that  there  will  be  a  loss. 
Besides,  the  relations  between  the  defendant  and  his  lender 
are  not  involved  in  this  proceeding.  The  information  con- 
tains no  charge  of  embezzlement  from  the  Societe;  he  is 
charged  only  with  "defrauding  said  Chen  Lai-ming"  and 
in  this  proceeding  he  can  be  tried  upon  no  other  charge 
than  that  contained  in  the  information.  It  should  be  re- 
membered, moreover,  that  the  Societe's  agent  testifies  that 
"there  were  no  representations  made  to"  him  and  the  loan 
seems  to  have  been  closed  upon  the  strength  of  the  docu- 
ments alone. 


UNITED  STATES  V.  BASCOM,  SEPT.  26,  1914.     .393 

Now  the  principal  document  (Exhibit  F)  above  quoted 
and  the  only  one  signed  by  the  defendant  in  dealing  with  the 
Societe  is  most  peculiar.  Tho  styled  a  "Declaration  of 
Trust"  it  is  clearly  not  such  in  any  sense  in  which  that 
phrase  is  used  in  Anglo-American  law.  Nor  does  it 
even  purport  to  be  a  conveyance  of  the  property  tho 
the  defendant  does  "hereby  agree  to  transfer  same  at  his 
(the  lender's)  request"  clearly  indicating  that  the  transfer 
had  not  been  made.  It  is  true  that  the  document  recites 
that  the  land  "is  the  property  of  Societe  Franco-Chinoise 
de  Credit"  but  that  language  was  evidently  inserted  in  the 
printed  form  to  cover  an  entirely  different  relation,  such  as 
that  which  existed  between  the  borrower  and  the  registered 
owner  in  this  case.  Besides  the  document  recites  that  the 
land  is  registered  in  the  British  Consulate  and  a  glance  at 
the  registry  there  would  have  shown  that  the  defendant 
was  not  the  registered  owner  but  that  his  borrower  was  the 
real  and  beneficial  owner  whose  rights  could  not  be  prej- 
udiced by  any  transaction  between  defendant  and  his 
lender. 

It  may  further  be  urged  that  the  Societe  may  deny  the 
applicability  of  English  law  to  this  transaction  and  refuse 
tj  surrei  der  the  documents  on  the  payment  of  the  original 
loan.  But  we  have  seen  that  the  land  is  registered  in  the 
British  Consulate  and  the  registry  is  therefore  subject  to 
the  jurisdiction  of  H.  B.  M.'s  Supreme  Court.  We  may 
v/ell  trust  that  eminent  tribunal  to  apply  the  English  law 
vath  its  logical  consequences  which  would  not  only  preclude 
the  registration  of  any  document  prejudicially  affecting  the 
mortgagor's  title  but  also  require  the  issuance  to  him  of 
a  new  title  deed  in  case  the  original  is  wrongfully  withheld 
from  him  by  any  party  outside  the  jurisdiction  of  said 
court.  Besides  the  registered  owner  has  stated  under  oath 
that  he  would  make  no  transfer  upon  the  instructions  ot 
defendant.  On  the  other  hand  the  latter  as  we  have  seen, 
hc.s  been  required  to  reconvey  the  premises.  He  has  com- 
plied with  said  requirement  by  executing  and  depositing 
with  the  clerk  of  this  court  an  instrument  whereby  he  does 

"grant,  remise,  release,  and  recover  to  said  Chen  Lai-ming  all  of 
the  estate  and  interest  derived  by  me  by  or  thru  said  Mortgage 
Deed,  in  said  lands  above  described." 


394  I  EXTRATERRITORIAL  CASES. 

The  possession  of  this  instrument  with  a  showing  of  the 
facts  relating  to  the  submortgage  ought  to  be  sufficient  to 
enable  the  mortgagor  ultimately  to  be  placed  in  statu  quo. 
He  may  be  put  to  some  inconvenience  and  expense,  by  litiga- 
tion or  otherwise,  but  there  is  nothing  yet  before  us  to 
v/arrant  the  finding  that  hio  "estate  shall  or  may  be  de- 
feated, injured  or  altered,"  and  we  certainly  cannot  assume 
in  advance  that  it  will  be. 

It  was  suggested  in  argument  that  if  the  accused  were 
acquitted  it  would  discourage  further  dealings  between 
Chinese  and  foreigners.  That,  of  course,  would  not  justify 
us  in  stretching  the  law;  but  far  more  serious,  in  our  judg- 
ment, would  be  the  adoption  of  a  rule  making  it  criminal 
to  repledge  title  documents;  for  that  would  limit  their 
transferability  and  consequently  impair  their  value  and 
interfere  with  legitimate  transactions.  The  modern  law 
favors  assignability  '  ■  and  statutes,  especially  penal  ones, 
must  be  construed  in  accordance  with  the  evident  tendency 
to  encourage  the  free  transfer  of  commercial  documents  of 
all  kinds. 

IV. 

The  second  count  of  the  information  charges  the  accused 
with 

"False  pretense  made  by  him  to  said  Chen  Lai-ming,  that  he,  said 
Frank  C.  Bascom,  then  and  there  had  in  his  possession  and 
control  funds  described  by  him  as  trust  funds  available  for  a  loan 
of  Shang-hai  Sycee  Taels  8,000,  by  him  to  said  Chen  Lai-ming, 
whereas  in  fact,  as  he,  said  Frank  C.  Bascom,  well  knew,  he  did 
not  then  and  there  have  in  his  possession  and  control  said  funds 
so  described." 

We  have  already  quoted  the  mortgagor's  testimony  on  this 
point.  He  says  that  he  knew  only  that  "defendant  was 
to  get  the  money."  We  find  no  evidence  upon  which  the 
accused  could  be  convicted  under  this  count.  Whether,  in- 
deed, a  charge  of  embezzlement  may  properly  be  joined  with 
one  for  false  pretenses  iieed  not  here  be  considered  since 
no  objection  was  made  on  that  ground.^" 


"Anson,  Contracts  (Huffcut's  ed.),  sees.  298,  299. 

''  See,  however.  Act  of  Congress  of  March  3,  1899,  sess.  Ill,  30  U. 
S.  Stats,  at  Large,  Ch.  429,  tit.  II,  sec.  43.  But  compare  Act  of 
March  3,  1901,  31  U.  S.  Stats,  at  Large,  sess.  II,  Ch.  854,  sec.  915. 


UNITED  STATES  V.   KILGORE,  OCT.   3,   1914.  395 

We  are  unable  to  find  the  defendant  guilty  upon  this 
evidence.  His  conduct  in  these  transactions  has  not  been 
open  or  ingenuous;  at  times  it  has  been  evasive,  shifty  and 
in  one,  tho  not  legally  important,  particular,  untruthful; 
whereas  a  straightforward  course  would  have  served  him 
much  better  and  incurred  no  greater  liability.  Nevertheless 
he  has  not,  so  far  as  the  evidence  discloses,  committed  either 
Ox  the  crimes  charged  in  the  information  and  we  have 
therefore  no  alternative  but  to  direct  an  acquittal  and  dis- 
charge with  costs  de  officio. 

IT   IS  SO  ORDERED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Willis  B.  Kilgore. 

[Criminal  cause  No.  98.] 

I.  ON  demurrer. 
[Filed   October   3,    1914.] 

SYLLABUS. 

(By  the  Court.) 

1.  EXTERRITORIALITY:    Venue.     The  consular  jurisdiction  to  which 

this  court  has  succeeded  was  not  confined  strictly  to  the  ter- 
ritorial limits  of  China. 

2.  Id.  :  Jurisdiction  to  punish  offenses  committed  in  China  includes  the 

power  to  make  such  punishment  effective;  to  fix  the  place,  tho 
outside  of  China,  where  the  penalty  shall  be  served,  to  exercise 
control  of  the  prisoner  while  en  route  there,  and  to  prevent,  by 
proper  punishment,  all  interference  with  such  control. 

3.  Id.  :  Id.:   Sources.     The  criminal  jurisdiction  of  this  court  is  dual, 

being  derived  in  part  from  treaties  and  statutes  providing  for 
their  execution  and  in  part  from  other  acts  of  Congress  which 
have  penalized  offenses  committed  elsewhere  than  in  China. 

4.  MISPRISION:   INFORMATION  examined  and  found  not  to  charge  mis- 

prision of  defendant's  own  felony. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
Messrs.  Jernigan  &  Fessenden,  for  defense. 

LOBINGIER,   J.: 

The  first  count  of  the  amended  information  in  this  case 
charges  the  defendant  with 


396  I  EXTRATERRITORIAL  CASES. 

"the  crime  of  allowing  a  prisoner  to  escape;  in  that  said  Willis 
B.  Kilgore,  within  the  jurisdiction  of  said  court,  said  jurisdiction 
covering  acts  and  omissions  to  act  on  the  part  of  said  Willis  B. 
Kilgore,  on  board  the  United  States  Army  Transport  Sheridan,  a 
vessel  of  the  United  States  on  United  States  Government  service 
on  the  high  seas,  that  is  to  say,  at  the  time  of  said  acts  and 
omissions  to  act,  within  waters  on  the  high  seas  side  of  the  shore 
low  water  mark  in  the  port  of  Nagasaki,  Japan,  on  voyage  from 
Manila,  Philippine  Islands,  to  San  Francisco,  California,  said  Willis 
B.  Kilgore  having  custody  of  one  United  States  prisoner,  by  name 
Peter  A.  Grimes,  and  having  authority  for  and  being  directed  to 
deliver  said  prisoner  to  the  Commanding  Officer  of  Troops  on 
board  said  transport  Sheridan  for  transfer  of  said  prisoner  to  the 
state  prison  at  San  Quentin,  California,  said  state  prison  having 
been  designated  to  receive  said  prisoner,  said  delivery  of  said  pris- 
oner at  said  port  in  Japan  with  the  arrangements  in  Japan  neces- 
sary to  said  delivery  having  been  mutually  agreed  upon  by  the 
Governments  of  Japan  and  the  United  States,  at  said  place,  to 
wit  on  board  said  United  States  Army  Transport  Sheridan  on  said 
high  seas  at  said  Nagasaki,  Japan,  heretofore  and  on  or  about  May 
20,  1914,  said  Willis  B.  Kilgore  being  then  and  there  the  prison- 
keeper  of  the  prison  at  Shanghai,  China,  for  American  convicts  in 
China  with  authority  and  direction  so  to  have  in  his  custody  and 
so  to  deliver  said  prisoner,  said  prisoner  theretofore  having  been,  by 
said  court,  convicted  of  felony,  forgery,  and  then  and  there  on 
said  conviction,  serving  sentence  of  imprisonment  of  three  years 
for  said  forgery  by  virtue  of  process,  to  wit,  commitment  by  said 
court  on  said  conviction  and  sentence,  said  process  having  been 
thereto  and  to  him,  said  Willis  B.  Kilgore,  issued  under  the  laws 
of  the  United  States  by  said  court,  said  Willis  B.  Kilgore  did 
voluntarily  and  feloniously  allow  and  suffer  said  prisoner  to  escape: 
against  the  laws  of  the  United  States  and  against  the  Act  of  Con- 
gress of  March  4,  1909,  Chapter  321  (Federal  Penal  Code),  Section 
138,  35  Statutes  at  Large,  1088,  1113." 

To  this  count  a  demurrer  is  interposed  on  the  ground 
that  it 

"charges  an  offense  committed  outside  the  territorial  jurisdiction  of 
this  Court  and  of  which  this  Court  has  no  jurisdiction." 

Counsel  for  the  demurrant,  in  his  argument,  lays  great 
stress  upon  those  phrases  in  the  early  treaties  between  the 
United  States  and  China  by  which  the  former  reserves 
jurisdiction  over  offences  committed  in  the  latter  country. 
The  original    (Gushing)    Treaty  does  indeed  provide  that 

"citizens  of  the  United  States  who  may  commit  any  crime  in  China 
shall  be  subject  to  be  tried  and  punished  only  by  the  Consul,  or  other 


UNITED  STATES  V.  KILGORE,  OCT.  3,  1914.  397 

public  functionary  of  the  United  States,  thereto  authorized  according 
to  the  laws  of  the  United   States.'" 

The  language  of  the  second  treaty  is  somewhat  broader, 
to  wit, 

"citizens  of  the  United  States,  either  on  shore  or  in  any  merchant 
vessel,  who  may  insult,  trouble  or  wound  the  persons  or  injure  the 
property  of  Chinese,  or  commit  any  other  improper  act  in  China,  shall 
be  punished  only  by  the  Consul,  or  other  public  functionary  thereto 
authorized,  according  to  the  laws  of  the  United  States." " 

Under  this  provision  American  jurisdiction  is  not  limited 
to  offences  committed  on  land,  nor  necessarily  to  those  com- 
mitted within  the  marine  league  for  the  language  used  seems 
sufficient  to  cover  offenses  "on  any  merchant  vessel"  any- 
where on  the  high  seas,  such  vessels  being  "treated  as  part 
of  the  territory  of  their  flag"  ^  for  many  purposes. 

In  1848  Congress  passed  the  first  act  designed  to  put 
into  effect  such  treaty  rights  and  therein  appears  a  further 
extension  of  consular  jurisdiction  as  follows : 

"That  in  regard  to  crimes  and  misdemeanors,  the  said  public 
functionaries  are  hereby  fully  empowered  to  arraign,  and  try,  in 
the  manner  herein  provided,  all  citizens  of  the  United  States  charged 
with  offences  against  law,  which  shall  be  committed  in  the  dominions 
of  China,  including  Macao,  and,  upon  conviction,  to  sentence  such 
offenders  in  the  manner  herein  authorized;  and  the  said  function- 
aries and  each  of  them  are  hereby  authorized  to  issue  all  such 
processes  as  are  suitable  and  necessary  to  carry  this  authority  into 
execution."* 

Here  it  will  be  seen  that  territorial  jurisdiction  is  ex- 
tended beyond  China  to  the  Portuguese  Colony  of  Macao. 

By  the  Act  of  1860  a  joint  provision  was  made  for  the 
exercise  of  extraterritorial  jurisdiction  in  several  countries 
including  China,  Japan  and  Siam,  the  Ministers  and  Con- 
suls of  the  United  States  therein  being  "fully  empowered 
to  arraign  and  try  in  the  manner  herein  provided  all  citizens 
of  the  United  States  charged  with  offenses  against  law 
which  shall  be  committed  in  such  countries  respectively."  ^ 

'  Treaty  of  July  3,  1844,  art.  XXI;  Malloy,  Treaties,  I,  203,  ante,  1. 

"-  Treaty  of  June  18,  1858,  art.  XI;  Malloy,  Treaties,  I,  215;  ante,  2. 

=  Pig-gott,  Extradition  (1910),  166.  Cf.  Hall,  International  Law 
(5th  ed.),  248  et  seq.,  253;  St.  Clair  v.  U.  S.  154  U.  S.  152,  38  L. 
ed.  943. 

'  9  U.  S.  Stats,  at  Large,  Ch.  150,  sec.  2,  p.  276. 

'  12  U.  S.  Stats,  at  Large,  Ch.  179,  sec.  2,  p.  72. 


398  I  EXTRATERRITORIAL  CASES. 

It  will  thus  be  noticed  that  for  nearly  a  score  of  years 
after  the  negotiation  of  our  original  treaty  with  China 
there  was  a  gradual  extension  of  territorial  jurisdiction 
for  American  courts  in  Far  Eastern  countries  and  that 
it  was  no  longer  confined  strictly  to  the  limits  of  such 
countries.  In  a  leading  case  •'  involving  the  commission 
of  the  crime  of  murder  on  an  American  vessel  in  the  harbor 
of  Yokohama  it  was  held  that  such  courts  had  concurrent 
jurisdiction  with  the  domestic  tribunals  of  the  United  States 
in  respect  to  said  crime  altho  it  was  actually  committed 
on  the  ''high  seas,"  which  term  was  defined  as  including 
"waters  on  the  seacoast  without  the  boundaries  of  low 
water  mark." 

The  treaty  of  1894  between  the  United  States  and  Japan 

provided  that: 

"The  jurisdiction  then  exercised  by  Courts  of  the  United  States 
in  Japan  and  all  the  exceptional  privileges,  exemptions  and  im- 
munities then  enjoyed  by  citizens  of  the  United  States  as  a  part 
of,  or  appurtenant  to  such  jurisdiction,  shall  absolutely  and  with- 
out notice  cease  and  determine  and  thereafter  all  such  jurisdiction 
shall  be  assumed  and  exercised  by  Japanese  Courts." ' 

It  will  be  observed  that  this  article  provides  for  the  sur- 
render of  no  more  than  "the  jurisdiction  then  exercised 
by  the  courts  of  the  United  States  in  Japan;"  such  jurisdic- 
tion as  belonged  to  the  courts  of  the  United  States  elsewhere 
over  offenses  committed  on  American  vessels  in  Japanese 
waters  remained. 

II. 

We  are  unable,  therefore,  to  find  a  legislative  intent  to 
confine  the  territorial  jurisdiction  of  even  the  consular 
courts  exclusively  to  China.  Moreover  in  centering  atten- 
tion on  the  phrase  "in  China,"  used  in  the  two  earliest  of 
the  treaties  above  quoted,  demurrant's  counsel  seems  to 
overlook  the  force  of  the  word  "punished"  '  appearing  in 
the  same  connection.     The  consul  or  other  American  repre- 

'  In  Re  Ross,  ante,  p.  40. 

'  Art.  XVIII,  Malloy,  Treaties,  etc.,  I,  1035. 

*"The  terms  'conviction'  and  'punishment'  each  have  a  well-settled 
legal  meaning,  and  are  used  in  the  law  to  designate  certain  stages 
and  incidents  of  a  criminal  prosecution."  In  re  Howe,  26,  Or.,  181,  37 
Pac.  Rep.  537. 


UNITED  STATES  V.  KILGORE,  OCT.  3,  1914.  399 

sentative  is  given  the  sole  power  to  try  and  punish  offenses 
committed  by  American  citizens  in  China. 

Now  the  power  to  "punish"  necessarily  includes  the  power 
to  make  punishment  effective.  Indeed  the  act  of  1848  ex- 
pressly confers,  as  we  have  seen,  the  power 

"to  issue  all  such  processes  as  are  suitable  and  necessary  to  carry 
this  authority  into  execution."* 

And  among  these  processes  is  the  commitment  or  mittimus 
which  fixes  the  place  where  the  penalty  shall  be  served.  By 
long  usage  this  court  and  its  predecessors  have  been  ac- 
customed, at  their  discretion,  to  fix  that  place  outside  of 
China,  to  wit,  in  the  United  States.  Thus  in  the  informa- 
tion before  us  it  is  alleged  that  the  prisoner,  whom  the 
accused  is  charged  with  having  allowed  to  escape,  had  been 
convicted  by  this  Court  and  was  being  transported  "to  the 
State  Prison  at  San  Quentin,  California,"  for  the  service 
of  a  sentence  which,  as  a  part  of  its  records,  this  court 
may  take  judicial  notice  of.     It  imposed 

"imprisonment  for  a  term  of  three  years  to  be  served  in  the  jail 
for  American  convicts  in  China  at  Shanghai,  China,  until  provision 
is  made  by  the  government  for  his  transfer  to  some  prison  in  the 
United  States." 

It  will  not  be  questioned  that  this  was  a  proper  exercise 
of  this  court's  power,  derived  in  succession  from  the  con- 
sular courts,  to  impose  punishment  for  offenses  committed 
"in  China."  But  it  involved  the  exercise  of  jurisdiction 
elsewhere.  For  this  court's  authority  over  the  prisoner  did 
not  cease  with  his  departure  from  the  territory  of  China; 
it  continues  until  the  expiration  of  the  sentence;  for  the 
latter  might  be  modified  after  the  prisoner's  incarceration 
in  San  Quentin  prison  and  such  modification  could  be  ef- 
fected by  this  court  alone.  And  should  this  Court  see  fit, 
after  such  incarceration,  to  require  the  prisoner's  return  to 
the  Prison  for  American  convicts  at  Shanghai,  it  would 
have  such  authority;  for  the  mittimus  may  be  changed  at 
any  time  within  the  duration  of  the  sentence.^" 

•9  U.  S.  Stats,  at  Large,  Ch.  150,  sec.  2,  p.  276. 

'°  Kingen  v.  Kelley,  3  Wyo.,  566,  15  L.  R.  A.,  177,  Mrhere  the  original 
commitment  by  the  Wyoming  court  w^as  to  the  Illinois  Penitentiary 
and  nearly  a  year  later,  by  a  new  mittimus,  the  prisoner  was  returned 
to  Wyoming  for  incarceration. 


400  I  EXTRATERRITORIAL  CASES. 

This  continuous  jurisdiction  over  the  prisoner  while  in- 
carcerated elsewhere,  and  while  en  route  to  and  from  such 
place  of  confinement,  necessarily  includes  a  measure  oi 
authority  over  his  custodian  or  such  jurisdiction  would  be 
futile.  For  the  prisoner  can  be  reached  and  controlled  only 
thru  such  custodian.  Such  authority  would  seem  to  be 
especially  strong  where  the  custodian  is  also  the  official 
keeper  of  a  prison  within  the  territorial  as  well  as  actual 
jurisdiction  of  the  Court, 

Similarly,  jurisdiction  to  impose  punishment  and  to  make 
it  effective  necessarily  includes  jurisdiction  to  prevent  inter- 
ference therewith  on  the  part  of  others.  Since  this  court 
may  require  the  transfer  of  a  prisoner  to  the  United  States 
for  the  service  of  sentence  and  may  control  and  direct  his 
movements  while  en  route  there  it  would  seem  strange 
indeed  if  it  could  not  prevent  or  punish  such  interference 
with  that  control  as  would  terminate  it  entirely.  It  is  no 
answer  to  say  that  such  punishment  may  be  imposed  by 
some  other  court.  The  treaty  confers  upon  this  court  the 
jurisdiction  to  punish  and  such  jurisdiction  is  not  complete 
unless  it  includes  the  power  to  enforce  punishment  and 
prevent  its  evasion. 

Under  the  Act  of  1848  "the  laws  of  the  United  States" 
were  "so  far  as  is  necessary  to  execute  said  treaty"  (of 
1844)  "extended  over  all  citizens  of  the  United  States  in 
China."  ''  This  provision  was  repeated  in  the  Act  of  1860  ^- 
and  has  been  incorporated  into  the  Revised  Statutes  of  the 
United  States." 

Now  if  our  treaty  undertakings  to  punish  crimes  com- 
mitted in  China  cannot  adequately  be  "executed"  without 
the  service  of  penalties  elsewhere,  and  if  such  service  cannot 
be  adequately  insured  without  the  exercise  of  jurisdiction 
to  prevent  interference  therewith,  then  "the  laws  of  the 
United  States  '■'  '•'  *  so  far  as  is  necessary"  to  such 
exercise  are  "extended"  here.  Thus  if  the  prisoner  or  his 
custodian  while  on  the  "high  seas"  en  route  to  such  other 
place  of  punishment  commit  some  offense  which  entirely 


9  U.  S.  Stats,  at  Large,  Ch.  150,  sec.  4,  p.  276. 
'■  12  U.  S.  Stats,  at  Large,  Ch.  179,  sec.  4,  p.  73. 
'  U.  S.  Rev.  Stats.,  sec.  4086. 


UNITED  STATES  V.  KILGORE,  OCT.  3,  1914.  401 

frustrates  the  penalty  imposed  by  this  court  and  we  can 
find  a  "law  of  the  United  States"  governing  offenses  so  com- 
mitted it  would  seem  to  be  our  duty  to  apply  it  here.  Such 
a  law  is  the  following: 

"The  trial  of  crimes  committed  on  the  high  seas,  or  in  any  place 
out  of  the  jurisdiction  of  any  particular  state,  shall  be  in  the  district 
where  the  offender  is  apprehended,  or  into  which  he  may  first  be 
brought." 

This  law,  indeed,  was  already  in  existence  long  before 
the  negotiation  of  any  of  the  treaties  above  mentioned. 
It  was  enacted  as  early  as  1790,^*  carried  in  to  the  Revised 
Statutes  ^^  and  now  forms  part  of  the  Federal  Judicial 
Code.i« 

III. 

Thus  far  we  have  discussed  the  question  from  the  stand- 
point of  the  treaties  and  the  acts  of  Congress  providing 
for  their  execution.  We  may  now  consider  it  in  the  light 
of  other  legislation.  It  is  true  as  pointed  out  by  defendant's 
counsel  that  this  court  has  succeeded  to  the  jurisdiction 
heretofore  "exercised  by  United  States  consuls  and  minis- 
ters."^^ But  its  organic  act  nowhere  provides  that  this 
court  shall  exercise  no  other  powers.  It  is  also  true  that 
its  jurisdiction  must  "be  exercised  in  conformity  with  said 
treaties  (with  China)  and  the  laws  of  the  United  States 
now  in  force  with  reference  to  the  American  consular  courts 
in  China,"  and  that  all  of  its  "decisions,  judgments,  and 
decrees  *  *  *  shall  be  enforced  in  accordance  with 
said  treaties  and  laws."  ^^  But  this  would  seem  to  put  a 
limitation  not  upon  the  extent  of  jurisdiction  but  upon  the 
mavner  of  its  exercise.  Its  jurisdiction  must  be  "exercised 
in  conformity"  and  its  decrees  "enforced  in  accordance  with 
said  treaties  and  the  laws."      In  other  words  there  must 

"1  U.  S.  stats,  at  Large,  Ch.  9,  p.  114. 

"  Sec.  730. 

*'Act  of  Congress  of  March  3,  1911,  sess.  Ill,  36  U.  S.  Stats,  at 
Large,  Ch.  231,  sec.  41. 

"  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Pt. 
I,  814,  sec.   1. 

^8  Id.,  sec.  4. 

14008  O.  W. 26 


402  I  EXTRATERRITORIAL  CASES. 

be  no  exercise  of  jurisdiction  and  no  enforcement  of  decrees 
in  such  a  manner  as  will  infringe  our  treaties  with  China 
or  the  United  States  laws  relating  thereto.  But  there  is 
nothing  in  this  limitation  or  elsewhere  in  its  organic  act 
which  prohibits  the  court  from  exercising  jurisdiction  which 
may  have  been  conferred  by  other  acts  of  Congress  pro- 
vided always  that  such  exercise  conforms  to  the  treaties  and 
the  laws  relating  thereto. 

To  illustrate  let  us  take  the  so-called  "White  Slave  Act" 
of  1910  which  provides  inter  alia 

"That  any  violation  of  any  of  the  above  sections  two,  three,  and  foar 
shall  be  prosecuted  in  any  court  having  jurisdiction  of  crimes  within 
the  district  in  which  said  violation  was  committed,  or  from,  thru, 
or  into  which  any  such  woman  or  girl  may  have  been  carried  or 
transported."  " 

It  has  already  been  held  -"  that  this  court  has  juris- 
diction over  offenses  under  this  act,  and  that  the  original 
violation  might  have  taken  place  in  the  United  States  and 
yet  the  offender  be  subject  to  trial  and  punishment  here. 

Another  example  may  be  found  in  the  following  familiar 
provision : 

"For  any  crime  or  offense  against  the  United  States,  the  offender 
may,  by  any  justice  or  judge  of  the  United  States,  or  by  any  com- 
missioner of  a  circuit  court  to  take  bail,  or  by  any  chancellor,  judge 
of  a  supreme  or  superior  court,  chief  or  first  judge  of  common 
pleas,  mayor  of  a  city,  justice  of  the  peace,  or  other  magistrate, 
of  any  State  where  he  may  be  found,  and  agreeably  to  the  usual 
mode  of  process  against  offenders  in  such  State,  and  at  the  expense 
of  the  United  States,  be  arrested  and  imprisoned,  or  bailed,  as  the 
case  may  be,  for  trial  before  such  court  of  the  United  States  as  by 
law  has  cognizance  of  the  offense."  " 

This  provision  has  been  held  applicable  to  the  courts  of 
a  territory  ^^  and  to  those  of  the  District  of  Columbia  ^^ 


"Act  of  Congress  of  June  25,  1910;  36  U.  S.  Stats,  at  Large, 
Pt.  I,  Ch.  395,  sec.  5,  p.  826. 

'"  U.  S.  V.  Thompson,  ante,  p.  261. 

*'U.  S.  Rev.  Stats.,  sec.  1014. 

"U.  S.  Haskins,  3  Sawy,  262,  26  Fed.  Cases,  213,  217.  Cf.  Kerr 
V.  Shine,  136  Fed.  61. 

"  Benson  v.  Henkel,  198  U.  S.  1,  49  L.  ed.,  919. 


UNITED  STATES  V.  KILGORE,  OCT.  3,  1914.  403 

tho  it  will  be  seen  that  no  such  court  is  expressly  mentioned 
in  the  section.  Can  it  be  fairly  doubted  that  it  is  equally 
applicable  to  this  court  and  that  its  judge  is  a  "judge  of  the 
United  States"  within  the  meaning  of  the  section?  Yet  it 
would  clearly  require  this  court,  or  rather  its  judge,  to 
exercise  jurisdiction  in  the  preliminary  stages  of  the  trial 
of  a  crime  originating  entirely  outside  of  the  territorial 
limits  of  China. 

Still  another  illustration  is  found  in  the  recent  "Opium 
Act"  of  Congress,  which  contains  the  following  provision : 

"That  any  person  subject  to  the  jurisdiction  of  the  United  States 
who  shall,  either  as  principal  or  as  accessory,  receive  or  have  in  his 
possession,  or  conceal  on  board  of  or  transport  on  any  foreign  or 
domestic  vessel  or  other  water  craft  or  railroad  car  or  other  vehicle 
destined  to  or  bound  from  the  United  States  or  any  possession 
thereof,  any  smoking  opium  or  opium  prepared  for  smoking,  or  who, 
having  knowledge  of  the  presence  in  or  on  any  such  vessel,  water 
craft,  or  vehicle  of  such  article,  shall  not  report  the  same  to  the 
principal  officer  thereof,  shall  be  subject  to  the  penalty  provided 
in  section  two  of  this  Act."  '* 

It  will  be  seen  that  no  court  is  specified  as  having  juris- 
diction to  enforce  the  penalty  but  the  Attorney  General 
has  nevertheless  ruled  -^  that  the  courts  of  the  Panama 
Canal  Zone  have  such  jurisdiction.  There  would  seem  to 
be  no  valid  reason  for  including  them  and  excluding  this 
court,  tho  the  act,  as  will  be  seen,  covers  offenses  on  the 
high  seas  and  even  on  foreign  vessels. 

The  truth  is  that  the  criminal  jurisdiction  of  this  court 
is  dual ;  i.  e.,  over  offenses  committed  in  China  (by  which  is 
meant,  however,  more  than  its  precise  territorial  limits) 
and  offenses  committed  elsewhere.  The  former  is  derived 
entirely  from  the  treaties  with  China  by  which  the  latter's 
jurisdiction  has  been  surrendered.  Jurisdiction  over  of- 
fenses of  the  second  class  is  derived  not  from  the  treaties 
but  from  the  Acts  of  Congress  which  has  unlimited  power 
to  confer  upon  this  court  jurisdiction  over  outside  offenses; 
for  this  can  in  no  way  affect  the  sovereign  rights  of  China 

"Act  of  Congress  of  Jan.  17,  1914,  sess.  II,  38  U.  S.  Stats,  at 
Large,  Pt.  II,  Ch.  9,  sec.  4,  p.  276. 

"•  Opinions  of  Attorneys  General,  XXX,  271   (July  14,  1914) . 


404  I   EXTRATERRITORIAL   CASES. 

nor  enlarge  the  jurisdiction  surrendered  by  the  treaties. 
And  this  court's  power  to  take  cognizance  of  crimes  com- 
mitted outside  of  Chinese  territory  may  arise  not  only  from 
the  Acts  of  Congress  passed  since  the  establishment  of  the 
court  but  by  pertinent  acts  previously  passed  which  accord- 
ing to  a  well  settled  doctrine  came  into  force  as  to  this  court 
upon  its  organization.  As  was  said  by  Mr.  Justice  Brown 
in  considering  the  applicability  to  the  District  of  Columbia 
of  the  section  of  the  Revised  Statutes  last  above  quoted : 

"It  is  true  that  this  section  was  taken  from  the  judiciary  act  of 
1789  and  at  that  time  the  District  of  Columbia  was  not  in  ex- 
istence. But  the  same  remark  may  be  made  of  the  dozens  of  dif- 
ferent districts  which  have  been  formed  since  this  act  was  passed. 
The  fact  that  the  District  of  Columbia  was  not  created  out  of  ter- 
ritory theretofore  unorganized,  but  was  simply  carved  out  of  the 
district  of  Maryland,  is  of  no  more  importance  than  would  be  the 
creation  of  a  new  district,  rendered  necessary  by  an  increase  of 
population  or  business,  of  which  almost  every  Congress  produces 
an  example.  Even  if  this  were  not  so,  the  re-enactment  of  this 
section  of  the  judiciary  act  in  1873,  as  sec.  1014  of  the  Revised 
Statutes,  clearly  extended  the  word  'district'  to  the  District  of 
Columbia  as  well  as  to  all  other  districts  created  since  the  judiciary 
act."  =" 

Long  previously  the  same  doctrine  had  been  announced 
by  Hillyer,  District  Judge,  as  follows: 

"The  act  of  1789  divided  the  United  States  into  thirteen  districts. 
Since  that  time,  as  states  have  been  admitted,  new  districts  have 
been  organized  and  so  far  as  I  can  ascertain  it  has  never  been 
questioned  that  the  general  provisions  of  the  judiciary  act  applied 
to  the  new  districts  without  any  express  enactment  of  them  for 
such  districts;  altho  by  a  narrow  construction  of  the  language  it 
might  be  held  to  apply  only  to  those  courts  and  districts  organized, 
and  to  which  cognizance  of  crimes  is  given,  by  that  act." " 

We  are  not  restricted  therefore  in  ascertaining  the  juris- 
diction of  this  court  over  offenses  committed  elsewhere  to 
the  recent  enactments ;  amj  pertinent  Act  of  Congress,  prior 

'•  Benson  v.  Henkel,  198  U.  S.,  1,  49  L.  ed.,  919,  citing  United  States 
v.  Bowen,  100  U.  S.,  508,  25  L.  ed.,  631;  Arthur  v.  Dodge,  101  U.  S., 
36,  25  L.  ed.,  949;  Cambria  Iron  Co.  v.  Ashburn,  118  U.  S.,  57,  30 
L.  ed.,  61,  6  Sup.  Ct.  Rep.,  929. 

-'  U.  S.  V.  Haskins,  3  Sawy,  262,  26  Fed.  Cases,  216. 


UNITED  STATES  V.  KILGORE,  OCT.  3,  1914.      405 

or  subsequent,  conferring  jurisdiction  upon  a  class  of  courts 
to  which  this  by  a  fair  interpretation  belongs,  is  applicable. 

IV. 

The  new  Judicial  Code  of  the  United  States  provides 
that  "the  district  courts  shall  have  original  jurisdiction 

*  *  *  of  all  crimes  and  offenses  cognizable  under  the 
authority  of  the  United  States."  ^^  This,  however,  should 
be  read  in  connection  with  a  later  section  of  the  same 
code  which  provides  that  in  cases  like  those  just  enumerated 
"the  jurisdiction  vested  in  the  courts  of  the  United  States 

*  *  *  shall  be  exclusive  of  the  courts  of  the  several 
states."  -^  In  other  words  the  purpose  of  these  two  pro- 
visions is  to  segregate  the  jurisdiction  of  "courts  of  the 
United  States"  from  that  of  "courts  of  the  several  states." 
Hence  it  would  appear  that  the  phrase  "district  courts"  as 
used  in  the  first  of  the  two  sections  above  referred  to  is  to 
be  taken  not  in  its  technical  sense  but  as  including  Federal 
courts  of  criminal  jurisdiction  as  opposed  to  state  courts. 
Thus  the  courts  of  the  territory  of  Alaska,  tho  not 
"district  courts"  in  the  technical  sense,-"  are  nevertheless 
vested  with  jurisdiction  "of  crimes  and  offenses  cognizable 
under  the  authority  of  the  United  States"  as  well  as  those 
defined  by  the  local  laws.^^  And,  as  we  have  just  seen,^^ 
the  Attorney  General  rules  that  offenses  under  the  "Opium 
Act"  are  cognizable  in  the  Panama  courts  tho  they  are  not 
"district  courts"  in  the  same  sense  as  those  of  America 
proper.  So  it  is  held  that  Courts  of  the  territories  are 
"courts  of  the  United  States"  for  many  purposes  ^^  and 
likewise  those  of  the  District  of  Columbia  ^*  and  the  Phil- 

"^Act  of  Congress  of  March  3,  1911,  sess.  Ill,  36  U.  S.  Stats,  at 
Large,  Pt.  I,  Ch.  231,  sec.  24,  p.  1091. 

''  Id.,  sec,  256,  p.  1160. 

="'  U.  S.  V.  Newth,  149  Fed.  302. 

''U.  S.  V.  Doo-noch-keen,  2  Alaska,  624. 

'^  Supra  note  25. 

^^  In  re  Osterhaus,  18  Fed.  Cases,  894;  U.  S.  v.  Haskins,  3  Sawy, 
262,  26  Fed.  Cases,  213,  citing  also  Hunt  v.  Paolo,  4  How  (U.  S.), 
589,  11  L.  ed.,  1115,  where  "the  territorial  court  of  Florida  is  spoken 
of  as  a  court  of  the  United  States." 

"'  Ex  Parte  Norvell,  20  D.  C,  353 ;  Noerr  v.  Brewer,  1  MacArthur, 
(D.  C),  508. 


406  I  EXTRATERRITORIAL  CASES. 

ippines.'^  In  the  act  creating  this  court  it  is  expressly- 
designated  as  "a  United  States  court"  and  the  same  phrase- 
ology is  used  several  times  in  the  body  of  the  Act.-^"  In  the 
light  of  the  foregoing  decisions  it  would  hardly  seem  unwar- 
ranted to  classify  this  court  in  the  same  category  as  those 
there  involved  and  to  conclude  that  it  shares,  in  a  proper 
case,  the  general  jurisdiction  conferred  upon  United  States 
courts  "of  crimes  and  offenses  cognizable  under  the  au- 
thority of  the  United  States."  The  following  language  of 
Judge  Hillyer  in  one  of  the  cases  above  cited  seems  espe- 
cially apropos  here: 

"So  far,  then,  as  these  courts  have  exclusive  jurisdiction  over 
crimes  committed  against  the  United  States  they  may,  it  seems  to  me, 
be  held  to  be  included  in  the  term  'courts  of  the  United  States'  as  used 
in  the  thirty-third  section  of  the  judiciary  act.  I  cannot  see  that  any 
sound  rule  of  construction  is  violated  by  so  doing.  The  act  is  remedial 
in  its  character  and  I  do  not  find  any  good  ground  for  giving  it  so 
narrow  and  technical  a  construction  as  is  contended  for  by  the  de- 
fendant, the  practical  effect  of  which  must  be  to  leave  offenses  com- 
mitted in  a  territory  where  they  cannot  be  reached  or  punished  if 
the  offender  succeeds  in  escaping  to  some  state."  " 

V. 

It  has  been  seen  that  as  between  state  and  federal  courts 
the  latter  have  exclusive  jurisdiction  "of  crimes  and  of- 
fenses cognizable  under  the  authority  of  the  United  States." 
But  there  are  some  such  "crimes  and  offenses"  which  be- 
long not  to  the  exclusive  jurisdiction  of  any  particular 
United  States  court  but  are  concurrently  cognizable  by  all 

^  "The  Government  of  the  Philippines  owes  its  existence  wholly  to 
the  United  States  and  its  judicial  tribunals  exert  all  their  powers  by 
authority  of  the  United  States.  The  jurisdiction  and  authority  of  the 
United  States  over  that  territory  and  its  inhabitants,  for  all  legitimate 
purposes  of  government,  is  paramount.  So  that  the  cases  holding  that 
the  same  acts  committed  in  a  state  of  the  Union  may  constitute  an 
offense  against  the  United  States  and  also  a  distinct  offense  against 
the  state  do  not  apply  here,  where  the  two  tribunals  that  tried  the 
accused  exert  all  their  powers  under  and  by  authority  of  the  same 
government — that  of  the  United  States."  Grafton  v.  United  States, 
206  U.  S.,  333,  51  L.  ed.,  1084. 

"Act  of  Congress  of  June  30,  1906,  sess.  I,  34  U.  S.  Stats,  at 
Large,  Ch.  3934,  sees.  1,  2,  4. 

"  U.  S.  v.  Haskins,  26  Fed.  Cases,  217. 


UNITED  STATES  V.  KILGORE,  OCT.  3,  1914.  407 

of  a  certain  class.  Such  is  the  effect  of  the  provision  al- 
ready quoted  --  regarding  offenses  committed  on  the  "high 
seas."  They  are  cognizable  by  the  United  States  court 
"in  the  district  where  the  offender  is  found  or  into  which 
he  is  first  brought"  and  it  is  conceded  that  the  accused  was 
"brought"  to  China  immediately  after  leaving  Japan. 

Here  again  the  term  "district"  seems  to  be  used  not  as 
confined  exclusively  to  the  judicial  districts  enumerated  in 
said  code.  For  the  Court  of  Appeals  ^'-^  has  treated  Hawaii 
as  a  "district"  within  the  meaning  of  this  provision  altho 
it  is  not  CO  enumerated.  So  a  similar  use  of  the  word  "dis- 
trict" in  a  section  above  quoted  from  the  Revised  Statutes 
has  been  held  ^'^  to  include  the  District  of  Columbia,  tho 
it  is  no  more  a  judicial  district  than  is  the  territorial  juris- 
diction of  this  court.  It  is  true  that  the  District  Court 
for  the  Western  District  of  Washington  has  held  *^  that 
Alaska  w^as  not  a  "district"  within  the  meaning  of  the 
section  above  quoted;  but  we  do  not  find  that  this  decision 
has  ever  been  confirmed  on  appeal  and  its  reasoning  seems 
hardly  to  harmonize  with  the  other  decisions  last  above 
cited  and  which  are  not  referred  to  therein.  But  we  re- 
gard as  conclusive  on  this  point  the  decision  *^  of  the  Su- 
preme Court  that  extraterritorial  tribunals  like  this  have 
jurisdiction  concurrent  with  Federal  Courts  in  the  United 
States  over  offenses  on  the  "high  seas"  where  that  charged 
is  alleged  in  the  information  to  have  been  committed.  By 
admitting  that  averment,  as  defendant  does  in  his  demurrer, 
the  jurisdiction  is  conceded. 

VI. 

The  amended  information  also 

"accuses  said  Willis  B.  Kilgore  of  the  crime  of  misprision  of  felony: 
in  that  said  Willis  B.  Kilgore  at  Shanghai,  China,  heretofore  and  on 

"  See  notes  14-16,  supra. 

"'Kerr  v.  Shine,  136  Fed.,  61. 

'"Benson  v.  Henkel,  198  U.  S.,  1,  49  L.  ed.,  119,  construing  U.  S. 
Rev.  Stats.,  sec.  1014. 

"  U.  S.  V.  Newth,  149  Fed.,  302. 

■*■■  In  re  Ross,  ante,  p.  40,  where  the  facts  as  to  the  scene  of  the 
crime  appear  to  have  been  exactly  parallel. 


=^ 


408  1  EXTRATERRITORIAL  CASES. 

or  about  May  30,  1914,  having  knowledge  of  the  actual  commission 
by  said  prisoner,  Peter  A.  Grimes,  of  the  crime  of  escape  as  alleged 
in  the  first  count  hereof,  said  escape  being  a  felony  cognizable  by 
the  courts  of  the  United  States,  did  wilfully  and  feloniously  conceal 
said  crime  and  did  not  as  soon  as  might  be  disclose  and  make  known 
the  same  to  some  one  of  the  judges  or  other  persons  in  civil  or  military 
authority  under  the  United  States:  against  the  laws  of  the  United 
States  and  against  the  Act  of  Congress  of  March  4,  1909,  Chapter 
321,  Section  146  (Federal  Penal  Code),  35  Statutes  at  Large,  1088, 
1114." 

The  demurrer  to  this  count  is  based  on  the  ground  that  it 

"does  not  charge  any  offense  at  all  in  that  it  charges  defendant  of 
misprision  of  a  felony  committed  by  himself  and  with  not  disclosing 
matters  which  if  true  as  alleged  in  said  information  the  disclosure 
of  which  would  incriminate  or  tend  to  incriminate  defendant." 

It  is  urged  that  the  phrase  "as  alleged  in  the  first  count 
hereof"  renders  the  charge  one  of  misprision  of  the  de- 
fendant's own  felony;  but  it  will  be  seen  that  the  crime 
referred  to  "as  alleged  in  the  fiist  count"  is  "the  crime  of 
escape"  and  not  the  crime  of  "allowing  a  prisoner  to  escape." 
Now  it  is  true  that  the  first  count  charges  the  last  named 
offense  but  we  think  it  is  also  clear  therefrom  that  the  pris- 
oner in  question  did  "escape"  and  that  in  so  doing  he 
committed  a  crime  which  is  the  one  referred  to  in  the 
second  count.  The  language  used  may  be  somewhat  ambig- 
uous but  no  objection  was  made  on  that  ground  and  as 
the  demurrer  goes  entirely  to  its  legal  sufficiency  we  cannot 
regard  it  as  well  taken. 

Upon  the  whole,  therefore,  we  find  the  amended  informa- 
tion sufficient  as  against  the  objections  urged  and  the  de- 
murrer is  accordingly 

OVERRULED. 


II.      ON  THE  MERITS. 
[Filed   October   24,    1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  ESCAPE:  The  crime  of  aiding  a  prisoner  to  escape  is  one  of  ex- 
treme gravity  since  it  completely  frustrates  the  administration 
of  justice. 


UNITED  STATES  V.  KILGORE,  OCT.  24,  1914.  409 

2.  Id.  :  Evidence.     Defendant's  own  statement  found  to  show  that  he 

voluntarily  "helped"  his  prisoner  to  escape;  no  extenuating  cir- 
cumstances apparent. 

3.  Id.  :   Penalty  imposed  according  to  precedent  cited  but  with  due 

consideration  of  the  plea  of  guilty. 

F.  E.  Hinckley,  Esq.,  Dist.  Atty.,  for  the  prosecution. 

Messrs.  Jemigan  &  Fessenden,  by  Mr.  Fessenden,  contra. 


LOBINGIER,  J.: 

The  accused  pleads  guilty  to  "the  crime  of  allowing  pris- 
oner to  escape;  in  that  *  *  *  having  custody  of  one 
United  States  prisoner,  by  name  Peter  A.  Grimes,  *  *  * 
said  Willis  B.  Kilgore  being  then  and  there  the  prison- 
keeper  of  the  prison  at  Shanghai,  China,  for  American 
convicts  *  *  *  ^[^  voluntarily  and  feloniously  allow 
and  suffer  said  prisoner  to  escape." 

The  seriousness  of  the  offense  thus  admitted  cannot  be 
too  strongly  emphasized.  In  the  Spanish  Penal  Code  it  is 
ranked  second  in  the  category  of  derelictions  of  public  of- 
ficials. In  this  particular  case  it  has  enabled  a  notorious 
second  offender  to  evade  the  punishment  which  the  law 
provides,  frustrated  the  work  of  this  court  and  its  officers 
and  rendered  its  entire  machinery  futile.  If  such  offenses 
were  to  become  general  the  courts  might  as  well  close  in  so 
far  as  effective  administration  of  the  criminal  law  is  con- 
cerned. 

It  was  contended  in  argument  in  defendant's  behalf  that 
the  offense  involved  no  "moral  turpitude."  To  this  we  are 
unable  to  agree.  For  one  who  is  placed  in  a  position  of 
trust  and  confidence,  as  is  the  keeper  of  a  prison,  to  betray 
it  voluntarily  and  deliberately  as  the  accused  admits  having 
done  seems  to  us  an  extreme  breach  of  a  highly  fiducial 
relation,  much  more  extreme,  indeed,  than  would  be  similar 
infidelity  toward  a  private  employer ;  for  the  interests  of  the 
state  and  the  public  are  more  important  than  those  of  an 
individual.  Defendant  himself  recognizes  this  for  in  his 
letter  of  June  9th,  which  we  shall  notice  presently,  he  says, 
"I  was  not  faithful  to  the  trust  put  to  me." 

Then  too  there  is  involved  the  element  of  treachery  to- 
ward the  Government ;  for  the  deliberate  frustration  of  the 


410  I  EXTRATERRITORIAL  CASES. 

course  of  justice  is  hardly  less  detrimental  in  time  of  peace 
than  the  interruption  of  military  operations  of  one's  own 
country  in  time  of  war. 

The  age  of  the  defendant  is  urged  by  way  of  extenuation. 
But  he  is  certainly  far  beyond  the  age  of  criminal  respon- 
sibility, having  attained  his  legal  majority  and  being  en- 
titled to  exercise  the  right  of  suffrage.  He  was  deemed 
old  enough  by  those  who  knew  him  to  assume  the  respon- 
sibility of  warden  of  the  prison  and  it  would,  we  feel, 
e<^tablish  a  very  dangerous  precedent  to  impose  a  nominal 
punishment  merely  on  the  ground  that  the  defendant  is  not 
older. 

It  is  finally  urged  that  the  accused  was  in  some  way 
"tricked"  by  the  prisoner  whom  he  allowed  to  escape  and 
that  this  was  accomplished  by  the  latter  as  a  means  of  re- 
venge. There  would  need  not  to  be  any  such  motive  as 
revenge  for  the  prisoner's  desire  to  escape  must  have  been 
well  known  to  this  accused  and  he  had  ample  reason  to  be 
on  his  guard  against  any  such  attempt  on  the  prisoner's 
part,  independently  of  any  retaliatory  motive.  It  appears 
too  that  on  a  former  occasion  the  accused  prevented  the 
escape  of  another  prisoner  by  shooting  him  so  that  he  was 
not  without  experience  in  such  emergencies  nor  without 
resources  to  meet  them. 

In  connection  with  determining  the  penalty  defendant 
has  submitted  certain  documents  which  he  desires  to  have 
considered  in  his  behalf.  These  are  in  no  sense  competent 
evidence  and  could  not  have  been  admitted  over  objection 
at  the  trial  had  there  been  one.  But  in  view  of  the  defend- 
ant's plea  of  guilty  we  have  considered  these  documents  for 
the  purpose  for  which  they  were  offered.  First  among 
them  is  a  statement  by  the  accused,  prepared  the  day  before 
his  plea,  in  which  he  purports  to  describe  as  follows  how  the 
prisoner  escaped: 

"I  remember  walking  with  him  from  the  hotel  toward  the  trans- 
port, he  carrying  his  grip.  Thinking  the  facts  over  later,  I  cannot 
recall  that  any  Japanese  police  was  with  us.  The  next  I  knew  I 
woke  up  in  the  train  with  Mr.  Grimes  shaking  me.  As  to  what 
happened  in  the  meantime,  I  only  know  what  Grimes  said,  which 
I  can  believe,  knowing  what  I  am  capable  of  when  under  these 
spells.     Upon  waking  up  he  told  me  that  I  had  taken  another  man 


UNITED  STATES  V.  KILGORE,  OCT.  24,  1914.  411 

aboard   the   transport   and   delivered    him   for   himself,    Grimes,   and 
had  secured   receipts  for  his  delivery." 

There  are  other  documents  tending  to  show  that  the 
accused  has  been  subject  to  "spells"  tho  the  naval  medical 
record  reports  "no  history  of  epilepsy." 

Now  if  it  were  clearly  shown  that  the  accused  while  in 
one  of  the  "spells,"  or  in  a  condition  of  semiconsciousness, 
allowed  his  prisoner  to  escape  it  would  have  a  very  im- 
portant bearing  upon  the  penalty.  Indeed,  if  that  fact 
could  have  been  shown,  no  penalty  would  be  needed  for  it 
could  afford  a  sufficient  defense  to  the  charge.  But  that 
no  such  condition  was  provable  by  competent  evidence  is 
clear  from  the  fact  that  the  accused  has  pleaded  guilty  to 
an  information,  which,  as  already  seen,  charges  that  he 
"did  voluntarily  *  *  *  allow  and  suffer  said  prisoner 
to  escape."  If  this  was  not  defendant's  voluntary  act,  i.  e., 
if  it  was  committed  unconsciously — then  he  should  not 
(and,  of  course,  would  not)  have  pleaded  guilty. 

Besides  defendant's  above  quoted  statement  there  is 
another  document  emanating  from  him  which  should  be 
equally  considered.  Rather  it  would  seem  entitled  to  much 
higher  consideration  for  it  was  written  at  a  time  much 
nearer  to  the  occurrences,  when  the  details  were  more  clearly 
in  defendant's  mind  and  to  a  party  who  was  in  no  position 
to  extend  clemency  and  was  therefore  not  designed  by  the 
defendant  to  place  himself  in  as  favorable  a  light  as  possible 
but  was  more  in  the  nature  of  a  frank  and  open  confession. 
From  the  standpoint  of  the  rules  of  evidence  also  this 
letter  is  more  entitled  to  consideration  than  any  of  the  other 
documents ;  for,  being  a  statement  against  his  own  interest, 
it  would  have  been  admissible  at  the  trial  had  there  been 
one. 

In  this  letter  written  while  en  route  from  Yokohama 
to  Shanghai,  on  June  19th  last,  the  accused  in  the  course 
of  five  pages  of  self-disparaging  statements  declares: 
"On  May  18th  I  took  Grimes  to  the  transport  at  Nagasaki. 
There  I  helped  him  to  escape." 

It  will  be  seen  that  no  claim  appears  here  that  defendant 
was  tricked,  hypnotized  or  drugged  by  the  prisoner.  It 
is  a  straightforward  confession  that  the  defendant  "helped 


412  I  EXTRATERRITORIAL  CASES. 

him  to  escape" — deliberately,  knowingly  and  voluntarily. 
We  are  unable  therefore  to  find  in  this  or  the  other  features 
of  the  case  already  mentioned  the  extenuating  circum- 
stances claimed. 

II. 

It  has  been  suggested  that  the  defendant  would  benefit 
most  by  being  sent  to  his  home  and  placed  under  its  in- 
fluences. But  even  assuming  that  there  is  any  way  of  insur- 
ing his  detention  there  (and  as  we  have  seen  he  has  attained 
his  majority  and  can  go  where  he  pleases)  the  deterrent 
effect  of  punishment  would  be  lost  by  this  or  any  other 
nominal  form  of  it.  In  the  letter  above  quoted  the  de- 
fendant expresses  his  intention  "to  take  my  medicine  like 
a  man"  and  we  cannot  but  believe  that  in  the  long  run  it 
will  be  much  better  for  him  to  do  this  and  learn  his  lesson 
so  that  it  may  not  be  forgotten  than  to  receive  a  nominal 
sentence  under  a  mistaken  idea  of  clemency.  We  have 
every  desire  to  assist  him  and  his  friends  in  their  laudable 
effort  to  start  him  on  a  new  and  better  course  of  conduct 
but  we  do  not  believe  this  would  be  accomplished  by  im- 
posing a  penalty  so  light  that  it  would  leave  little  or  no 
impression.  Moreover,  it  is  not  the  defendant  alone  who  is 
to  be  considered  in  this  connection.  All  similar  offenders 
will  expect  a  like  nominal  sentence  if  defendant  is  given 
one,  and  rightfully,  for  sentences  must  be  imposed  without 
discrimination  in  accordance  with  the  doctrine  of  equality 
before  the  law.  And  if  all  sentences  were  nominal  society 
would  have  little  protection  against  crime. 

III. 

There  is,  however,  one  fact  which  is  worthy  of  consid- 
eration and  that  is  the  defendant's  plea  of  guilty.  Tech- 
nically this  is  not  an  extenuating  circumstance  ^  but  by 
almost  universal  custom  in  American  courts  it  is  usual  to 
impose  a  lighter  sentence  upon  a  plea  of  guilty  than  after 
stubborn  resistance  and  trial. 

The  Federal  Penal  Code  provides  that  one  who  voluntarily 
suffers  such  prisoner  to  escape,  "shall  be  fined  not  more 

•U.  S.  V.  Molo,  5  Phil.,  414;  U.  S.  v.  Ablaza,  1  Phil.,  740. 


UNITED  STATES  V.  KILGORE,  OCT.  24,  1914.  413 

than  two  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both."  - 

We  cannot  think  that  this  provision  contemplates  any- 
such  nominal  punishment  as  has  been  suggested  here. 
Under  some  systems  the  penalty  is  graded  according  to 
that  of  the  prisoner  who  was  allowed  to  escape.  Thus  the 
Spanish  Penal  Code  provides  ^ 

"The  public  official  guilty  of  connivance  in  the  escape  of  a  pris' 
oner  whose  conveyance  and  custody  may  have  been  entrusted  to  him 
shall  be  punished — 

1.  In  case  the  fugitive  should  have  been  finally  sentenced  to  un- 
dergo any  penalty,  with  that  lower  than  the  same  by  two  degrees," 
etc. 

So 

"Where  the  prison  was  not  broken  and  no  actual  violence  done 
the  court  did  not  inflict  punishment  exceeding  that  frovt  which  the 
offender  had  escaped.'^  * 

The  nearest  exact  precedent  which  we  have  been  able  to 
find  is  a  Pennsylvania  case  '"  where  a  jailer  who  had  per- 
mitted prisoners  to  escape  was  sentenced  to  imprisonment 
for  five  months  and  to  pay  a  fine  of  one  hundred  and  fifty 
dollars.  The  accused  appealed  from  the  sentence  which 
was  affirmed  in  this  language: 

"The  plaintiff  ought  to  congratulate  himself  upon  the  moderation 
of  the  sentence,  instead  of  complaining  of  its  severity.  It  was 
unquestionably  within  the  power  of  the  Quarter  Sessions  to  have 
sentenced  him  to  the  penitentiary  for  any  period  not  exceeding  two 
years.  His  offence  was  a  most  seriovis  one,  and  his  punishment 
comparatively   light." 

In  view  of  the  defendant's  plea  of  guilty  we  have  con- 
cluded to  follow  that  precedent  so  far  as  the  term  of  im- 
prisonment is  concerned  but  to  supplement  its  conceded 
insufficiencies  by  a  substantial  fine. 

The  defendant  is  accordingly  sentenced  to  five  months' 
imprisonment  in  the  prison  for  American  convicts  at 
Shanghai,   China,   to   pay  a   fine  of  five  hundred    ($500) 

'Fed.  Penal  Code,  sec.  138. 

^  Spanish  Penal  Code,  art.  358. 

'  16  Cyc,  547,  citing   State  v.   Doud,   7   Conn.,   384. 

°  Weaver  v.   Commonwealth,   29    Pa.    St.,   445. 


414  I   EXTRATERRITORIAL   CASES. 

dollars,  United  States  currency,  together  with  the  costs  of 
this  prosecution,  and  to  stand  committed  until  both  are 
paid. 

As  to  the  second  count  the  information  is  dismissed  in 
accordance  with  the  oral  motion  of  the  District  Attorney 
in  open  court  and  defendant's  cash  bail  ordered  returned. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

United  States  v.  Edward  C.  LeClair  alias  Edward  C. 

Burke. 

[Cause  No.  404;  filed  November  2,  1914.] 

SYLLABUS. 
(By  the  Court) 

1.  ROBBERY:    EVIDENCE   examined   and    found   sufficient  to   show  be- 

yond reasonable  doubt  that  defendant  is  guilty  as  principal 
in  the  crime  of  robbery. 

2.  Id.  :    Degrees.     The   common   law   classification    of   principals   into 

those  of  the  first  and  second  degrees  has  not  been  abolished 
by  the  Federal  Penal  Code  and  as  defendant  was  not  the 
actual  perpetrator  of  the  abstraction  which  constitutes  the  gist 
of  robbery  he  must  be  treated  as  a  principal  in  the  second 
degree. 

3.  Id.  :    Extenuation.     By   the    prevailing,   rule,   mental    aberration, 

produced  by  the  voluntary  use  of  cocaine,  is  treated  as  affect- 
ing criminal  responsibility  in  the  same  way  as  that  resulting 
from  the  similar  use  of  intoxicating  liquors;  i.  e.,  the  crime 
committed  under  such  circumstances  is  not  excused  but  it  is 
classified  as  of  lower  degree  and  the  punishment  is  reduced 
accordingly. 

4.  Id.  :    Penalty   imposed   with   application   of  two   extenuating   cir- 

cumstances. 

F.  E.  Hinckley,  Esq.,  Dist.  Atty.,  for  the  prosecution. 
H.  D.  Rodger,  Esq.,  for  the  defense. 

LOBINGIER,  J.: 

This  is  a  prosecution  for  the  robbery  of  a  Chinese  pawn- 
shop on  Woosung  Road  in  Shanghai,  between  8  and  9  p.  m. 
on  October  18,  1914.  Three  Chinese  testify  that  two  for- 
eigners, defendant  being  one,  both  armed  with  revolvers, 


UNITED  STATES  V.  LECLAIR,  NOV.  2,  1914.      415 

entered  the  shop,  that  the  other  one  passed  behind  the 
counter  to  the  cash  drawer,  opened  it  and  abstracted  its 
contents,  while  defendant,  with  the  handle  of  his  revolver, 
struck  the  shop  manager  and  prevented  him  from  rallins: 
aid. 

Defendant,  in  reply  to  a  question  as  to  whether  he  was 
in  such  a  pawnshop  on  the  night  in  question,  said  "I  might 
have  been  but  I  do  not  remember  having  been  there." 
There  is  other  evidence,  however,  that  he  was  seen  in 
company  with  an  American  named  Long  shortly  before  and 
shortly  after  the  time  in  question  as  well  as  evidence 
tending  to  show  that  Long  was  "the  other  foreigner"  men- 
tioned by  the  Chinese  witnesses.  Defendant's  participa- 
tion in  the  affair  as  described  by  them  cannot,  therefore, 
seriously  be  doubted. 

The  provision  upon  which  the  information  is  based  reads 
as  follows : 

"Whoever,  by  force  and  violence,  or  by  putting  in  fear,  shall 
feloniously  take  from  the  person  or  presence  of  another  anything 
of  value,  shall  be  imprisoned  not  more  than   fifteen   years."  ^ 

The  same  instrument  also  provides  that 

"Whoever  directly  commits  any  act  constituting  an  offense  de- 
fined in  any  law  of  the  United  States,  or  aids,  abets,  counsels,  com- 
mands, induces,  or  procures  its  commission,  is  a  principal."  " 

"The  effect  of  the  section,"  says  Judge  Morrow  =*  "is  to 
abolish  the  distinction  between  principals  and  accessories  in 
offenses  defined  in  the  laws  of  the  United  States."  Hence, 
under  the  testimony  above  quoted,  the  accused  must  be 
treated  as  a  principal  in  the  crime  of  robbery  for  he  aided 
and  abetted  in  its  commission  by  being  present,  helping  to 
intimidate  the  inmates  of  the  pawnshop  and  preventing  the 
escape  of  at  least  one  bj^  assaulting  him.  But  Blackstone 
makes  this  distinction : 

^Fed.  Penal  Code,  sec.  284. 

'  Id.,  sec.  332. 

"Rooney  v.  U.  S.,  203  Fed.  928.  Cf.  People  v.  Bliven,  112  N.  Y. 
82,  19  N.  E.,  639.  The  result  v^as  partially  effected  by  the  Act  of 
Congress  of  March  3,  1899,  sess.  Ill,  30  U.  S.  Stats,  at  Large,  Ch. 
429,  tit.  I,  sec.  186. 


416  I   EXTRATERRITORIAL  CASES. 

"A  man  may  be  principal  in  an  offense  in  two  degrees.  A  prin- 
cipal, in  the  first  degree,  is  he  that  is  the  actor,  or  absolute  per- 
petrator, of  the  crime;  and,  in  the  second  degree,  he  who  is  present, 
aiding  and  abetting  the  fact  to  be  done."  * 

We  find  no  provision  of  the  Federal  Penal  Code  which 
expressly  abolishes  this  classification  of  principals  and  in  the 
absence  of  such  a  provision  v^^e  must  assume  that  the 
classification  is  retained,  especially  as  it  is  well  recognized 
in  the  criminal  jurisprudence  of  the  several  states.^ 

Now  it  will  be  seen  from  the  definition  contained  in  the 
Penal  Code  that  the  principal  act  in  the  crime  of  robbery 
is  the  taking.  "Whoever  *  *  *  shall  feloniously  take," 
etc.,  shall  be  punished.  But  it  will  be  seen  from  the  tes- 
timony that  the  accused  was  not  the  perpetrator  of  that 
act  tho  he  aided  and  abetted  it.  We  therefore  find  the 
accused  guilty,  as  a  principal,  of  the  offense  charged  but  in 
the  second  degree. 

II. 

The  accused  testifies  that  on  the  night  in  question  and 
shortly  before  the  time  when  the  affair  took  place  he  took 
injections  of  cocaine  four  different  times  amounting  in 
quantity  to  about  a  half  teaspoonful  and  that  he  also  drank 
a  considerable  quantity  of  intoxicating  liquors.  That  he 
is  addicted  to  the  use  of  these  stimulants  is  also  the  tes- 
timony of  a  former  business  associate  as  well  as  of  the 
prison  warden  who  says  that  the  defendant  has  asked  for 
morphine  during  his  incarceration  and  seemed  nervous  and 
depressed  without  it. 

The  appearance  of  defendant  and  his  indifferent,  not  to 
say  dazed,  attitude,  during  the  trial  strengthens  the  claim 
that  he  is  an  habitual  user  of  cocaine. 

Dr.  Davis,  the  surgeon  of  the  "Elcano,"  states  his  pro- 
fessional opinion  that  the  amount  of  cocaine  and  intoxicat- 
ing liquors  which  the  accused  claims  to  have  taken  on  the 
night  in  question  would  render  him  subconscious  and  with- 
out a  realizing  sense  of  what  he  was  doing. 


*  Commentaries  IV,  34,  citing  Hale's  Pleas  of  the  Crown,  1,  615. 
Cf.  12  Cyc,  184,  185. 
'  12  Cyc,  185,  note  44. 


UNITED  STATES  V.  LECLAIR,  NOV.  2,   1914.  417 

On  the  strength  of  this  testimony  defendant's  counsel 
urges  that  his  client  was  not  criminally  responsible  and, 
with  commendable  evidence  of  research,  produces  a  Texas 
case  '^  holding  that  one  who,  as  a  result  of  using  cocaine  and 
morphine,  was  unable  to  understand  what  he  was  doing 
could  not  be  found  guilty  of  an  assault  with  intent  to  murder 
because  he  would  be  incapable  of  conceiving  such  intent. 

But  Texas  appears  to  be  the  only  jurisdiction  where  this 
doctrine  prevails.  Elsewhere  the  rule  seems  to  be  that 
mental  incapacity  produced  by  the  use  of  cocaine  has  no 
different  legal  effect  than  where  it  results  from  using  in- 
toxicating liquors.  Thus  in  an  opinion  which  affirmed  a 
conviction  of  a  murder  where  a  defense  not  unlike  this 
was  interposed  the  court  says : 

"Parties  who  persist  -in  subjecting  themselves  to  the  persistent  use 
and  habit  of  taking  alcoholic  drink  or  other  poisonous  compounds 
and  drugs,  cannot  expect  the  same  forbearance  and  immunity  from 
punishment  as  those  bereft  of  reason  by  the  act  of  God.  It  is  ad- 
missible and  proper  to  show  the  immoderate  use  of  drugs  or  whiskey, 
not  to  excuse  crime,  but  to  illustrate  the  mental  condition,  with  a 
view  to  fixing  the  degree  of  the  crime  as  it  depends  upon  deliberation 
and  cool  malicious  purpose." ' 

This  appears  also  to  be  the  general  American  rule  as 
regards  the  commission  of  this  crime  of  robbery  while 
under  the  influence  of  intoxicants.''  Even  in  the  Ohio  de- 
cision "  cited  by  defendant's  counsel  the  most  that  the  court 
would  say  (and  that  was  obiter)  was  that 

"If  the  accused  was  so  drunk  as  not  to  know  what  he  was  doing, 
the  fact  of  intoxication  may  4oubtless  be  given  in  evidence  for  what 
it  is  worth  for  the  purpose  of  showing  that  he  did  not  intend  at  the 
time  to  do  what  he  in  fact  did  do." 

III. 

In  determining  the  penalty  then  there  are  two  circum- 
stances which  the  accused  seems  fairly  entitled  to  have 
considered  as  extenuating:  (1)  the  fact  that  he  is  a  prin- 
cipal in  the  second  degree  and  (2)  that  he  was  apparently 

•Edwards  v.  State,  38  Tex.  App.,  386;  39  L.  R.  A.,  262. 

'Wilcox  V.  State,  94  Tenn.,  106;  28  S.  W.,  312. 

'  12  Cyc,  173,  Note  63. 

*  Nichols  V.  State,  8  Ohio  St.,  435. 

14008  O.  W.-^27 


418  I   EXTRATERRITORIAL  CASES. 

in  a  state  of  mental  aberration  which,  tho  voluntarily 
produced,  lowers  the  grade  of  punishment  in  spite  of  the 
fact  that  it  does  not  excuse  the  crime.  Applying  these  two 
extenuating  circumstances  we  fix  the  penalty  at  imprison- 
ment for  three  years. 

The  defendant  is  accordingly  sentenced  to  serve  such 
term  beginning  in  the  prison  for  American  convicts  in 
China  at  Shanghai,  China,  and  there  continuing  until 
adequate  provision  is  made  by  the  authorities  for  his  assured 
transfer  to  some  proper  and  lawful  place  of  confinement 
in  the  United  States  where  the  balance  of  such  term  shall 
be  served.  The  accused  is  further  adjudged  to  pay  the 
costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
hi  re  Dorothy  E.  L.  B.  McGhee's  Estate. 

[Cause  No.  406;  filed  November  28,  1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  DISTRICT    ATTORNEY:    APPEAKANCE.     It    is    proper,    and    in    some 

instances  necessary,  for  the  District  Attorney  to  appear  on 
behalf  of  the  United  States  in  a  civil  cause  over  which  the  ju- 
risdiction of  this  court  is  in  doubt. 

2.  CITIZENSHIP:    FORFEITURE.     Sec.  4  of  the  Act  of  1907  authorizes 

a  foreign  woman,  naturalized  by  marriage  and  who  "resides 
abroad,"  to  retain  her  citizenship  by  registering  at  an  American 
consulate  within  one  year  after  the  termination  of  such  mar- 
riage; but  does  not  expressly  make  that  method  exclusive  nor 
in  terms  penalize,  by  loss  of  citizenship,  the  failure  so  to  register. 

3.  Id.  :    Id.     It   seems   also   doubtful   whether   the   word   "abroad,"   as 

used  in  said  section,  applies  to  residence  in  this  extraterritorial 
jurisdiction. 

4.  Id.  :    Children,  tho   born   abroad,   of  an   American  father   acquire 

his  citizenship. 

Joseph  W.  Rice,  Esq.,  for  petitioner. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  contra. 

LOBINGIER,  J.: 

A  petition  is  here  presented  by  Mrs.  Amy  Buckley  praying 
for  letters  of  administration  upon  the  estate  of  her  daughter, 


IN  RE  MCGHEE'S  ESTATE,  NOV.  28,  1914.  419 

Dorothy  E.  L.  B.  McGhee,  who  is  alleged  to  have  died  at 
Shanghai,  China,  on  November  6,  1914,  and  to  have  been 
a  citizen  of  the  United  States.  The  District  Attorney  ap- 
pears "on  behalf  of  the  United  States"  and  files  an  answer 
in  which  he  "denies  the  allegation  in  the  first  paragraph  of 
said  petition  that  said  deceased  was  at  the  time  of  her 
death  a  citizen  of  the  United  States."  This  answer  the 
petitioner  moves  to  strike  out  on  the  ground  that  it  is  not 
filed  in  behalf  of  a  proper  party  defendant  or  intervener 
and  that  the  District  Attorney  is  not  authorized  to  appear 
in  such  a  proceeding. 

It  is  well  settled,  however,  "that  interest  in  the  estate  is 
not  required"  ^  in  order  to  entitle  a  party  to  oppose  a 
petition  like  this.  In  California,  where  a  public  adminis- 
trator is  provided,  he  may  contest  such  an  application  in 
the  public  interest.-  Such  we  take  it  is  the  position  of  the 
District  Attorney  in  this  case.  He  is  required  by  law  to 
appear  in  "all  civil  actions  in  which  the  United  States  are 
concerned"  ^  and  we  think  they  are  concerned  in  seeing  that 
the  jurisdiction  of  this  court  is  not  exercised  improperly 
nor  in  cases  to  which  it  does  not  lawfully  attach.  More- 
over, if  the  District  Attorney  were  simply  a  member  of 
the  bar,  without  official  status,  he  would  be  entitled  as  an 
amicus  curiae  *  to  appear  for  the  purpose  of  pointing  out 
any  impropriety  or  infringement  of  the  public  interest  in 
granting  such  a  petition.  It  would  seem  to  be  in  no  way 
more  prejudicial  to  the  applicant  for  him  to  appear  officially. 
The  motion  to  strike  out  the  answer  is  therefore  denied. 

II. 

Coming  now  to  the  merits  of  the  issue  raised  by  the 
pleadings  we  find  from  the  evidence  that  the  deceased  was 
born  in  Australia  about  1893.     The  mother  testifies  that 

^  19  Encyc.  Pleading  &  Practice,  831. 
'  Estate  of  Healy,  122  Cal.,  162. 

•  Rev.  Stats.,  sec.  771,  made  applicable  here  by  the  organic  act  es- 
tablishing this  court,  34  U.  S.  Stats,  at  Large,  Pt.  I,  814,  sec.  6. 

*  "An  amicus  curiae  is  one  who,  voluntarily  or  on  invitation  of  the 
court,  instructs  the  court  on  a  matter  of  law  concerning  which  the 
latter  is  doubtful  or  mistaken,  or  informs  him  of  facts,  a  knowledge 
of  which  is  necessary  to  a  proper  disposition  of  the  case."     2  Cyc,  281. 


420  I  EXTRATERRITORIAL  CASES. 

her  husband,  the  deceased's  father,  was  an  American, 
coming  to  Australia  "eight  or  nine  years"  before  their 
marriage.  At  the  age  of  eighteen  the  deceased  was  married 
to  one  Charles  B.  McGhee  in  Manila,  P.  I.,  on  August  21, 
1911,  by  the  Rev.  A.  E.  Chenoweth,  a  minister  of  the  Meth- 
odist Episcopal  Church,  in  the  presence  of  two  American 
witnesses.  It  is  conceded  by  the  District  Attorney  that  Mr. 
McGhee  was  an  American  citizen  and  consequently  by  her 
marriage  to  him  the  deceased  would  have  become  a  nat- 
uralized American  even  had  she  previously  been  British  ^ 
and  regardless  of  what  her  occupation  may  have  been." 

It  appears,  however,  that  Mr.  McGhee  died  at  Shanghai, 
China,  on  April  27,  1913,  more  than  a  year  and  a  half 
preceding  the  death  of  his  widow.  But  it  was  long  ago 
held  by  competent  authority  that  American  citizenship  ac- 
quired by  a  foreign  woman  thru  marriage  was  not  lost 
merely  by  the  latter's  termination. 

"L.,  a  woman,  originally  a  British  subject,  went  to  Canton,  in 
China,  and  opened  a  hotel.  By  the  British  regulations,  British 
subjects  were  required,  under  certain  penalties,  to  take  out  a  license 
for  such  purpose.  There  was  no  American  regulation  on  the  sub- 
ject. L.  claimed  to  be  an  American  citizen  under  sec.  1994,  Re- 
vised Statutes  of  the  United  States,  which  provides  that  any  woman 
'who  is  now  or  may  hereafter  be  married  to  a  citizen  of  the  United 
States,  and  who  might  herself  be  lawfully  naturalized,  shall  be 
deemed  a  citizen.'  She  had  lately,  however,  been  divorced  from 
her  American  husband  by  the  judgment  of  the  United  States  con- 
sular court  at  Niuchwang.  The  consul  at  Canton  inclined  to  the 
opinion  that  she  had  by  the  divorce  lost  her  American  citizenship. 
The  minister  at  Peking  expressed  the  opinion  that  the  divorce  had 
simply  dissolved  the  marital  relations,  and  that  she  still  remained 
a  citizen  of  the  United  States.  The  Department  of  State  aproved 
this  opinion,  stating  that  L.,  by  her  marriage,  became  an  American 
citizen,  both  by  British  and  by  American  law;  that  she  had  not  lost 
her  American  nationality  by  any  method  recognized  by  American 
law;  that  according  to  British  law  an  English  woman,  who  by 
marriage  acquires  foreign  citizenship,  must,  in  order  to  reacquire 
her  original  nationality  upon  her  husband's  death,  obtain  a  certif- 
icate therefor  from  the  British  authorities;  that  it  was  not  believed 
that  any  different  rule  would  be  applied  wl^ere  the  parties  were 
divorced,  and  that,  as   L.   claimed  American  citizenship,   it  was   as- 


'  U.  S.  Rev.  Stats.,  sec.  1994. 
Ex  parte  Grayson,  215  Fed.,  449. 


IN  RE  MCGHEE'S  ESTATE,  NOV.  28,  1914.  421 

sumed  that  she  had  not  taken  any  steps  to  reacquire  British 
nationality,  and  that  there  was  no  conflicting  claim  to  her  al- 
legiance." ' 

In  1907  Congress  passed  an  act  which  contained  the 
following  provision : 

"That  any  foreign  woman  who  acquires  American  citizenship  by 
marriage  to  an  American  shall  be  assumed  to  retain  the  same  after 
the  termination  of  the  marital  relation  if  she  continue  to  reside  in 
the  United  States,  unless  she  makes  formal  renunciation  thereof 
before  a  court  having  jurisdiction  to  naturalize  aliens;  or,  if  she 
resides  abroad,  she  may  retain  her  citizenship  by  registering  as  such 
before  a  United  States  consul  within  one  year  after  the  termina- 
tion   of   such   marital    relation."  * 

It  will  be  seen  that  the  first  part  of  this  provision  merely 
reaffirms  the  doctrine  stated  in  the  preceding  excerpt  while 
the  latter  portion  provides  a  special  method  of  retaining 
citizenship  in  case  the  party  "resides  abroad."  The  District 
Attorney  contends  that  this  method  is  exclusive  in  such  cases 
and  that  as  deceased  failed,  so  far  as  appears,  to  register 
before  an  American  consul  within  a  year  of  her  husband's 
death  she  lost  her  citizenship.  But  the  language  of  the 
statute  is  not  exclusive  in  terms;  it  does  not  provide  that 
no  such  woman  shall  retain  her  citizenship  except  by  so 
registering.  Rather  does  it  seem  to  be  cumulative  in  its 
meaning,  indicating  a  new  mode  by  which  the  right  re- 
cognized before  the  enactment  of  the  statute  may  be  exer- 
cised and  made  a  matter  of  record. 

By  using  the  word  "may,"  moreover,  Congress  appears 
to  have  intended  this  new  mode  to  be  no  more  than  per- 
missive.    It  would  have  been  very  easy  to  have  said  "shall." 

Finally  the  act  seems  to  be  in  derogation  of  the  common 
law   and   therefore   subject  to    strict   construction.^     And 

"Where  the  statute  not  only  affects  a  change  in  the  common  law, 
but  is  also  in  derogation  of  common  rights,  it  must  be  construed  with 
especial  strictness.  Examples  of  such  statutes  are  those  which 
operate  in  restraint  of  personal  liberty  or  civil  rights,"  etc.^" 

'  Moore,  Int.  Law  Dig.,  Ill,  459,  citing  Mr.  Uhl,  Acting  Sec.  of 
State,  to  Mr.  Denby,  March  17,  1894,  For.  Rel.   (1894),  139. 

'  34  U.  S.  Stats,  at  Large,  sess.  II,  Pt.  I,  Ch.  2534,  sec.  4,  p.  1229. 

'  36  Cyc,  1179. 

^"Id. 


422  I  EXTRATERRITORIAL  CASES. 

To  hold  otherwise  would  be  to  construe  the  statute  as 
abrogating,  without  a  trial,  a  right  which  previously  existed, 
i.  e.,  of  retaining  citizenship  without  registration — and  such 
a  construction  should  not  be  indulged  unless  the  language 
clearly  requires  it.  Indeed  there  would  seem  to  be  some 
doubt  as  to  the  validity  of  a  statute  so  providing,  for  it  has 
been  held  that 

"While  a  citizen  may  expatriate  himself  with  the  consent  of  his 
state,  express  or  presumed,  no  act  of  legislature  can  denationalize 
a  citizen  without  his  concurrence." " 

If,  however,  we  were  to  construe  the  requirement  of 
registration  as  exclusive,  and  therefore  indispensable, 
the  word  "abroad"  as  used  in  the  statute  would  still 
have  to  be  so  interpreted  as  to  include  this  case.  But  clearly 
the  term  is  not  intended  to  embrace  all  other  residence  than 
"in  the  United  States."  The  parties  in  question  were  mar- 
ried in  the  Philippines  which,  like  Porto  Rico,  are  tech- 
nically not  part  of  the  United  States  tho  territory  thereof.'^ 
If  the  deceased  had  continued  to  reside  there  after  her 
husband's  death  the  requirement  of  registration  with  an 
American  consul  could  not  possibly  have  been  complied 
with  because  there  is  necessarily  no  such  official  in  the 
Philippines.  Hence  the  term  "abroad"  must  be  given  a 
wider  meaning  than  as  apposed  merely  to  continental  United 
States ;  it  includes  at  least  some  place  over  which  the  United 
States  Government  exercises  jurisdiction,  and,  in  so  far  as 
its  own  citizens  are  concerned,  the  territory  of  China  is 
such  a  place. 

The  State  Department  which,  as  an  authority  in  such  mat- 
ters is  hardly  less  final  than  the  courts,  has  already  drawn 
a  distinction  between  residents  in  ordinary  foreign  territory 
and  that  subject  to  extraterritorial  jurisdiction. 

"By  her  marriage  to  a  citizen  of  the  United  States  Mrs.  Con- 
stantine  became  vested  with  his  rights  as  a  citizen  of  the  United 
States.  Upon  his  death  she  might  revert  to  her  original  citizenship 
or   retain    her    American    citizenship.     She    elects    to    do    the    latter, 

"  Burkett  v.  McCarty,  10  Bush  (Ky.),  758  declaring  unconstitu- 
tional an  act  providing  expatriation  as  a  penalty  for  rebellion,  to 
be  applied  without  trial. 

"  Downes  v.  Bidwell,  182  U.  S.,  244,  45  L.  ed.,  1088. 


IN  RE  MCGHEE'S  estate,  NOV.  28,  1914.  423 

and  the  fact  that  she  is  dwelling  in  Turkey  does  not  militate  against 
her  doing  so,  the  Department  having  repeatedly  ruled  that  the 
limitations  of  permitted  residence  abroad  do  not  apply  to  that 
country.'  It  was  therefore  held  that  she  was  entitled  to  a  passport 
as  a  citizen  of  the  United  States." " 

And  there  is  a  fundamental  reason  for  this  distinction. 
For  if  a  woman  who  has  acquired  American  citizenship  by- 
marriage  only,  elects  after  the  termination  of  such  marriage, 
to  reside  in  a  country  over  which  the  United  States  Govern- 
ment exercises  no  jurisdiction  whatever,  she  may  well  be 
presumed  to  have  elected  to  become  subject  to  the  jurisdic- 
tion of  that  country  and  consequently  it  is  reasonable  to  re- 
quire some  overt  and  express  act  on  her  part  to  negative  such 
presumption.  But  when  she  is  residing  in  territory  in 
which,  tho  foreign,  she  is  still  subject  to  the  laws  and  juris- 
diction of  the  United  States  no  such  presumption  arises  and 
the  requirement  of  registration  is  logically  not  so  necessary. 

One  of  the  witnesses  called  by  the  District  Attorney 
testified  that  the  deceased,  less  than  a  year  after  her  hus- 
band's death,  informed  him  that  she  had  been  married  to 
a  Danish  subject  in  Hongkong  and  showed  him  a  certificate 
apparently  supporting  that  statement.  The  witness  was  un- 
able to  give  any  particulars  regarding  the  certificate,  as  to 
the  authority  under  w^hich  it  was  issued,  or  even  as  to  the 
names  it  contained.  Moreover,  the  avowed  purpose  of  the 
statement,  as  explained  by  the  deceased,  was  to  forestall  the 
exercise  of  any  authority  over  her  as  an  American  citizen 
by  the  District  Attorney.  In  other  words  it  was  a  self- 
serving  declaration  and  as  such  was  inadmissible  ^^  because 
hearsay.  It  matters  not  that  the  statement  might  now  be 
against  the  interest  of  this  petitioner ;  it  is  the  interest  of 
the  declarant  which  constitutes  the  test  of  hearsay  ^^  and 
the  interest  of  the  declarant  thus  quoted  was,  or  at  least  was 
believed  to  be,  plainly  subserved  by  making  the  statement. 
If,  therefore,  timely  objection  had  been  made  the  evidence 
would  necessarily  have  been  excluded.     But  while  evidence 


"  Moore,  Int.  Law  Digest,  III,  459,  citing  Secretary  Hay  to  Amb. 
Choate,  No.  530,  Jan.  14,  1901,  MS.  Inst.  Gr.  Br.,  XXXIII,  534. 
"  16  Cyc,  1202  et  seq. 
"Id.,  1217. 


424  I  EXTRATERRITORIAL  CASES. 

tho  incompetent  may  sometimes  be  considered  if  admit- 
ted without  objection  still  in  view  of  the  uncertain  character 
of  this  testimony,  the  inability  of  the  witness  to  remember 
essential  particulars  and  the  strong  motives  of  self  interest 
on  the  part  of  the  declarant  in  making  the  statement,  we 
feel  that  it  would  be  unsafe  to  base  a  finding  of  a  second 
marriage  thereon  especially  as  the  petitioner  testifies  that 
her  daughter  declared  to  her  about  the  same  time  that  she 
had  not  married  again. 

There  is  moreover  one  item  of  evidence,  undisputed,  which 
resolves  in  favor  of  our  jurisdiction  whatever  doubt  may  re- 
main. As  already  stated  the  petitioner  testifies.that  her  hus- 
band, the  deceased's  father,  was  an  American  by  birth.  The 
District  Attorney  in  his  brief  urges  "that  this  was  discre- 
dited ;"  but  we  are  unable  to  see  how.  The  testimony  is  ex- 
plicit that  the  father  came  from  America  and  that  he  was 
not  known  to  have  changed  his  nationality.  It  must  be  pre- 
sumed, therefore,  that  the  same  continued  ^°  and  that  the 
deceased  was  not  only  the  wife  but  the  daughter  of  an  Amer- 
ican citizen.  It  is  well  established  that  ''the  foreign-born 
children  of  a  citizen  are  themselves  citizens.' ' 

In  view  of  these  considerations  we  are  unable  to  find  that 
the  jurisdiction  of  this  court  should  be  withheld  and  accord- 
ingly we  must  declare  the  estate  of  the  deceased  entitled  to 
administration  here.  Letters  will  accordingly  issue  upon 
the  production  of  a  good  and  sufficient  bond  the  amount  of 
which  will  be  fixed  after  a  showing  is  made  as  to  the  assets 
of  the  estate. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Robert  W.  Sexton,  Plaintiff,  v.  S.  R.  Price,  Defendant. 

[Civil  action  No.  136;  filed  December  26,  1914.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRACTS:  UNLAWFUL  OBJECT.  Under  the  doctrine  prevailing 
in  this  jurisdiction  money  loaned  to  promote  an  object  pro- 
hibited by  law  cannot  be  recovered. 

"  In  re  Bascom,  ante,  p.  378,  and  cases  there  cited. 
"  7  Cyc,  139,  note  21,  citing  many  cases. 


SEXTON  V.  PRICE,  DEC.  26,   1914.  425 

2.  Id.  :  Id.  :  Maxim.     In  such  cases  the  court  applies  the  maxim  in  pari 

delicto   melior   est   conditio   possedentis    and   leaves   the   parties 
where  it  found  them. 

3.  Id.  :   Id.  :   Evidence.     The  lender's  knowledge  of  such  unlawful  ob- 

ject may  be  inferred  from  circumstances  if  sufficient  to  put  him 
on  inquiry. 

4.  Id. :    Id.  :    Laches.     Long   delay   beyond   the   period   of   the   statute 

of  limitations,  in  beginning  suit,  tends  to  cast  suspicion  on  the 
claim  and  to  support  a  plea  of  settlement. 

5.  Id.  :  Id.  :  Id.     Evidence  held  sufficient  to  shift  to  the  plaintiff  the 

burden  of  proof  which  was  not  met  by  him. 

Messrs.  Fleming  &  Davies  by  Mr.  Fleming,  for  plaintiff. 
Messrs.  Jernigan  &  Fessenden  by  Mr.  Fessenden,  contra. 

LOBINGIER  J.: 

This  is  an  action  upon  an  instrument  of  which  the  fol- 
lowing is  a  copy: 

Tls.  15,000.00  Tls.  15,000.00 

May  4th,  1909. 

Thirty  days  after  date  for  value  received  I  promise  to  pay  R.  W. 
Sexton  the  sum  of  fifteen  thousand  taels   (Tls.  15,000.00). 

S.  R.  Price." 

The  complaint  or  petition  filed  July  22,  1914,  sets  forth 
the  above  instrument,  alleges  non-payment  and  prays  re- 
covery of  the  full  amount.  The  answer  admits  the  execution 
of  the  instrument 

"but  alleges  that  it  was  mutually  understood  and  agreed  between 
plaintiff  and  defendant  at  the  time  of  making  of  said  alleged  note 
that  same  was  not  intended  to  operate  as,  or  have  the  effect  of,  a 
promissory  note  as  between  the  parties  thereto. 

2.  And  defendant  further  alleges  that  at  the  time  of  making  of 
said  alleged  note  there  was  an  open  and  running  account  between 
plaintiff  and  defendant  and  that  plaintiff  was  indebted  to  defendant 
on  said  account  in  a  large  sum  of  money,  the  exact  amount  of  which 
had  not  then  been  definitely  determined  and  agreed  upon,  but  which 
was  greatly  in  excess  of  the  amount  stated  in  said  alleged  note,  and 
that  it  was  mutually  understood  and  agreed  between  plaintiff  and  de- 
fendant that  said  alleged  note  was  only  intended  to  operate  as,  and 
have  the  effect  between  the  parties  of,  a  receipt  or  as  evidence  of  a 
pajrment  by  plaintiff  to  defendant  in  respect  of  the  aforesaid  open 
account  between  plaintiff  and  defendant. 

3.  That  the  aforesaid  open  account  was  settled  and  discharged 
by  mutual  consent  of  the  said  parties  on  or  about  the  3rd  day  of 
September,  1910. 


426  I  EXTRATERRITORIAL  CASES. 

4.  That  said  alleged  note  is  without  consideration  and  void  and 
that  defendant  is  not  indebted  to  plaintiff  in  the  sum  stated  in  plaintiff's 
petition  or  in  any  sum  or  amount  whatsoever." 

The  replication  or  reply  is  in  effect  a  general  denial. 

Upon  these  issues  the  parties  went  to  trial,  each  testify- 
ing in  his  own  behalf.  Plaintiff  claims  that  in  1905  he 
entered  into  partnership  with  defendant  in  conducting  a 
gambling  and  road-house  known  as  "The  Alcazar"  which 
they  purchased  jointly  each  contributing  one-half  of  the 
price.  Later  he  says  they  took  over  a  similar  but  more 
extensive  concern  known  as  "The  Alhambra",  in  conducting 
which,  plaintiff  states,  "I  furnished  the  money,  I  done  the 
work  and  got  50  per  cent  of  the  net  profits"  (p.  61)  the 
rest  being  paid  to  defendant. 

Plaintiff  also  claims  (p.  63)  to  have  advanced  the  latter 
as  much  as  Tls.  50,000  for  which  plaintiff  says  (p.  64) 
he  accepted  a  note  (Ex.  1)  purporting  to  have  been  executed 
not  by  defendant  but  by  one  Frank  Gordon,  December, 
1907,  but  of  which  plaintiff  says  (p.  64)  "I  cannot  explain 
it.  It  has  been  dated  back  alright".  Later,  he  says,  (p. 
66)  he  loaned  defendant  Tls.  15,000  for  which  he  took  the 
note  here  sued  on  (Ex.  A.) 

Defendant's  version  of  their  transactions  differs  ma- 
terially from  plaintiff's.  The  former  claims  that  instead 
of  being  a,  partner  in  the  business  of  "The  Alhambra"  he 
sold  it,  including  the  unincumbered  furniture  and  lease 
which  had  been  acquired  from  the  said  Gordon,  to  plaintiff 
for  Tls.  60,000,  that  he  received  payments  from  time  to 
time  on  the  purchase  price  but  that  instead  of  giving  receipts 
therefor  in  ordinary  form  he  executed  non-negotiable  notes, 
of  which  that  sued  on  is  one.  His  reason  for  so  doing, 
he  explains  by  saying:  "I  did  not  want  to  show  that  I  was 
connected  with  the  business  of  'The  Alhambra'  or  have  to 
explain  I  was  not  connected  with  it." 

It  will  be  seen  that  whichever  version  is  accepted  we 
have  h^re  set  forth  a  most  peculiar  and  unusual  course  of 
dealing.  We  may  agree  with  plaintiff's  counsel  that  it  is 
remarkable  that  his  client  should  agree  to  pay  defendant  the 
sum  of  Tls.  60,000  for  an  investment  which  had  cost  de- 
fendant according  to  his  own  statement  about  $25,000.     But 


SEXTON  V.  PRICE,  DEC.  26,   1914.  427 

it  seems  hardly  less  remarkable  that  plaintiff  who,  as  he  de- 
clares, furnished  all  the  capital  and  labor  for  the  enterprise 
should  then  give  defendant  half  the  profits  and  should  fur- 
ther loan  him  sums  amounting  in  the  course  of  time  to  more 
than  defendant's  alleged  purchase  price. 

It  seems  very  strange  that  defendant  should  have  effected 
a  sale  to  plaintiff  without  taking  any  written  evidence  there- 
of but  hardly  more  strange  than  that  plaintiff  should  have 
advanced  to  defendant  a  sum  nearly  as  large  taking  only  the 
unsecured  note  of  a  third  party  who,  as  plaintiff  claims, 
failed  to  make  any  payments ;  or  hardly  more  strange  than 
that  plaintiff  should  conduct  a  partnership  with  defendant 
without  any  written  evidence  of  a  partnership  agreement, 
with  no  partnership  account  and  with  books  which  were  of 
so  little  importance  to  the  business  that  they  were  subse- 
quently sold  at  auction. 

It  is  certainly  unusual  to  execute  a  receipt  in  the  form 
of  a  promissory  note  but  it  is  also  unusual  for  a  creditor 
to  accept  as  evidence  of  indebtedness  for  an  amount  as  large 
as  Tls. 15,000,  an  unsecured,  non-negotiable  instrument  such 
as  that  here  sued  on.  Since  the  instrument  was  originally 
given  for  only  thirty  days  the  absence  of  interest  might  not 
have  been  so  unusual  but  such  absence  clearly  makes  it 
more  difficult  to  explain  the  long  delay  in  seeking  to  enforce 
payment. 

II. 

Nevertheless  for  the  purpose  of  resolving  the  first  defense 
let  us  assume  that  plaintiff's  account  of  the  relations  be- 
tween the  parties  deserves  the  greater  credit  and  disregard 
entirely  defendant's  testimony  as  to  the  origin  of  the  note 
and  the  numerous  questions  of  fact  raised  thereby. 

We  have,  then,  a  situation  in  which  plaintiff  himself  had, 
at  the  time  of  the  note's  execution,  been  engaged  in  gam- 
bling as  a  business  during  nearly  four  years  at  least.  Since 
in  Shanghai  he  began  as  defendant's  employee  in  1905  (p. 
56)  and  since  he  does  not  appear  to  have  engaged  in  any 
other  business  in  the  interval,  it  seems  fair  to  assume  that  so 
large  a  sum  as  Tls. 15, 000,  accumulated  by  1909,  must  have 
been  the  product  of  his  gambling  operations.  Indeed  plain- 
tiff practically  says  this  when  he  testifies   (p.  93)  : 


428  I  EXTRATERRITORIAL  CASES. 

"That  is  the  time  the  trouble  commenced.  That  was  the  thirty 
thousand  taels  in  the  bank  roll  in  1909.  Before  that  the  house  had 
been  paying  well.  Mr.  Price  got  one  hundred  and  fifteen  thousand 
dollars  and  1  took  out  of  the  house  bank  eighty  thousand  dollars 
of  my  own.  I  believe  the  bank  roll  started  with  thirty  thousand 
dollars." 

For  the  sum  in  question  was  only  one  of  a  series  of  ad- 
vances which  plaintiff  claims  to  have  made  to  defendant 
and  was  preceded  by  loans  aggregating  no  less  than  Tls. 
50,000   (p.  85). 

And  not  only  was  the  note  sued  on  given  by  defendant 
as  claimed  by  plaintiff,  for  money  realized  in  their  joint 
gambling  operations ;  it  was  also,  according  to  the  same  au- 
thority (pp.  67,  93,  94),  borrowed  for,  and  actually  used 
in,  another  gambling  house. 

Now  all  this  was  in  direct  violation  of  statutes  governing 
Americans,  in  this  extraterritorial  jurisdiction.  The 
Act  ^  framed  by  Congress  for  the  District  of  Columbia  and 
in  force  here  under  the  doctrine  of  the  Court  of  Appeals  - 
penalizes  gambling  and  fixes  a  maximum  penalty  of  im- 
prisonment for  five  years. 

It  is  well  settled,  in  the  federal  courts  at  least,  that 
money  loaned  to  promote  an  object  prohibited  by  law  can- 
not be  recovered.  As  was  said  by  the  Supreme  Court  * 
in  denying  recovery  on  a  note  evidencing  such  a  loan : 

"The  whole  doctrine  of  avoiding  contracts  for  illegality  and  im- 
morality is  founded  on  public  policy.  It  is  certainly  contrary  to 
public  policy  to  give  the  aid  of  the  courts  to  a  vendor  who  knew  that 
his  goods  were  purchased,  or  to  a  lender  who  knew  that  his  money 
was  borrowed,  for  the  purpose  of  being  employed  in  the  commission 
of  a  criminal  act,  injurious  to  society  or  to  any  of  its  members." 

Under  one  of  the  above  cited  acts  of  Congress  the 
United  States  District  Court  *  for  Alaska  denied  relief  to 


*Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large, 
Ch.  854,  sec.  865.  Cf.  Act  of  March  3,  1899,  Sess.  Ill,  30  U.  S.  Stats, 
at  Large,  Ch.  429,  Tit.  I,  sec.  152. 

=  Biddle  v.  U.  S.,  ante,  p.  120. 

'Hanauer  v.  Doane,  12  Wall.  (U.  S.),  342,  20  L.  ed.,  439.  Cf. 
Tatum  V.  Kelley,  25  Ark.,  209,  94  Am.  Dec,  717;  Ruddell  v.  Landers, 
25  Ark.,  238,  94  Am.  Dec,  719. 

'M'Ginley  v.  Cleary,  2  Alaska,  269.  Cf.  Boddie  v.  Brewing  Co., 
204  111.,  352,  68  N.  E.,  394,  rendered  under  a  peculiar  statute. 


SEXTON  V.  PRICE,  DEC.   26,    1914.  429 

one  who  sought  to  recover  real  estate  conveyed  in  pay- 
ment of  money  lost  at  gambling,  and  said: 

"The  plaintiff  was  the  proprietor  of  the  saloon  and  the  operator  of 
the  dice  game  in  which  he  lost  his  property.  He  now  asks  a  court 
of  equity  to  assist  him  in  recovering  it  and  this  raises  the  question, 
may  a  gambler  who  runs  a  game  and  loses  the  bank  roll  come  into  a 
court  of  equity  and  recover  it?  He  conducted  the  game  in  violation 
of  law,  conveyed  his  premises  to  pay  the  winner's  score,  and  now 
demands  that  the  court  assist  him  to  regain  it.  Equity  will  not 
become  a  gambler's  insurance  company,  to  stand  by  while  the  gamester 
secures  the  winnings  of  the  drunken,  unsuspecting,  or  weak-minded  in 
violation  of  the  law,  ready  to  stretch  forth  its  arm  to  recapture  his 
losses  when  another  as  unscrupulous  or  more  lucky  than  he  wins  his 
money  or  property.  Nor  will  the  court  in  this  case  aid  the  defen- 
dant." 

For  the  maxim  which  governs  in  such  cases  is,  In  pari 
delicto  melior  est  conditio  possidentis.^ 

In  Maryland,''  whose  common  law  supplies  that  of  the 
District  of  Columbia  and  hence  to  some  extent  that  of  this 
jurisdiction,  a  note  given  in  consideration  of  money  loaned 
for  "making  books"  on  horse  races  in  another  state  was 
declared  void  because, 

"Both  the  plaintiff  and  defendant  testified  that  the  note  was  given 
for  the  defendant's  contribution  to  the  capital  of  the  partnership 
formed  between  them  to  carry  on  the  so-called  business  of  betting 
on  horse  races  in  Virginia." 

In  an  early  Ohio  case  '  the  rule  was  applied  against  a 
carpenter  who  had  "assisted  in  constructing,"  as  appur- 
tenant to  a  coffee  house,  a  nine-pin  alley  whose  maintenance 
was  prohibited  by  statute.  "It  is  an  erection  sid  generis, 
whose  ordinary  use  in  such  a  place  is  unlawful,"  said  Lane, 
/,  "It  was  right  for  the  court  to  charge  the  jury  he  could 
not  recover  for  this  work." 

The  foregoing  are  but  a  few  of  the  many  authorities  on 
this  point  and  are  selected  for  purposes  of  illustration 
from  jurisdictions  whose  law  most  resembles  that  prevail- 
ing here  or  which  apply  it  in  cases  most  resembling  thi&. 
Plaintiff's  counsel  does  not  seriously  question  the  doctrine 


'  See  Broom's  Legal  Maxims,  721,  729,  730. 

'  Spies  v.  Rosenstock,  87  Md.,  14,  39  Atl.  Rep.,  268. 

'  Spurgeon  v.   McElwain,  6  Ohio,  442,  27  Am.  Dec.  266    (1834). 


430  I  EXTRATERRITORIAL  CASES. 

but  contends  "  that  all  the  circumstances  attending  this  loan 
point  very  strongly  to  the  lack  of  knowledge  on  Sexton's 
part  as  to  the  purpose  for  which  it  was  intended". 

We  do  not  find,  however,  that  plaintiff  himself  makes 
quite  so  strong  a  claim.  Examined  by  his  counsel  he  tes- 
tified regarding  the  note  in  question   (p.  67)  : 

"Q.  What  was  the  purpose  of  that  loan? 

A.  He  didn't  tell  me  at  the  time. 

Q.  Did  you  learn  afterwards?      A.   Yes,  sir. 

Q.  What  was  the  money  used  for?  A.  He  gave  Mr.  Gordon  the 
money  to  go  over  and  open  "Jessfield"  in  opposition  to  me. 

Q.  "Jessfield  Inn"?     A.  Yes,  sir. 

Q.  Was  that  in  opposition  to  you?     A.  Yes,  sir. 

Q.  That  place,  "Jessfield  Inn,"  was  run  in  opposition  to  "The  Al- 
hambra"?     A.  Yes,  sir." 

Here  it  will  be  seen  plaintiff  makes  no  claim  of  ignorance 
as  to  the  purpose  of  the  loan  but  merely  that  defendant 
"didn't  tell"  him.  Our  examination  of  the  evidence  leads 
us  to  the  conclusion  that  it  was  not  necessary  for  defend- 
ant to  "tell"  plaintiff  in  order  that  he  should  know. 

On  cross-examination  the  latter  testified  (p.  93)  : 

"Q.  You  did  not  know  what  he  wanted  to  do  with  the  money? 
A.  No;  not  at  that  time. 

Q.  How  did  you  find  out  what  he  did  with  the  money? 
A.  He  paid  it  to   Gordon  who  fixed  up  the  place  and  everybody 
joked  me  that  I  bought  it." 

Now  the  only  mention  of  any  "time,"  and  that  several 
questions  earlier,  was  of  "the  time  *  *  *  -when  you 
entered  into  this  alleged  partnership." 

Later  the  cross-examination  reverts  to  this  point  as 
follows  (p.  94)  : 

"Q.  You  say  Mr.  Price  wanted  this  money,  this  fifteen  thousand 
taels,  to  buy  that  place  and  start  it  up  with  Mr.  Gordon? 

A.  Yes,  sir.  I  found  it  out  afterwards  that  that  is  what  he  wanted 
the  money  for  and  used  it  for. 

Q.  And  this  was  at  a  time  when  as  ycm  claim  there  was  a  part- 
nership understanding  existing  between  you  two — you  were  partners? 

A.  Yes,  sir. 

Q.  And  Mr.  Price  wanted  to  go  into  "Jessfield"  as  you  understand 
it  and  open  the  place  and  go  in  and  start  opposition  to  you? 

A.  Yes,  sir. 


SEXTON  V.  PRICE,  DEC.  2  6,   1914.  431 

Q.  That  is  your  explanation  of  what  Mr.  Price  wanted  to  dd  with 
this  money  you  say  you  loaned  him,  this  fifteen  thousand  taels? 
A.  Yes,  sir." 

This  is  all  we  find  from  plaintiff  on  this  point  and  in 
none  of  it  does  he  state  categorically  and  unequivocally 
that  he  was  ignorant  of  defendant's  intentions  when  the 
latter  borrowed  the  money.  Much  less  does  plaintiff  de- 
clare that  he  really  believed  the  money  destined  for  any 
other  purpose  than  gambling. 

On  the  other  hand  we  find  circumstances  which  in  our 
view  "point  very  strongly"  the  other  way. 

1.  Plaintiff  makes  much  of  the  fact  that  he  and  defendant 
were  partners.  Their  relations  began  the  day  after  plain- 
tiff's arrival  in  Shanghai  (p.  56)  and  continued  until  after 
the  "Alhambra"  was  closed  (p.  84)  which  was  several 
months  after  the  note  sued  on  was  given  (p.  84).  From 
the  first  the  association  was  very  close  for  plaintiff  says, 
of  defendant,  (p.  56)  "I  saw  him  every  day  and  night  and 
rode  home  with  him  in  the  morning  when  I  had  finished 
work."  Is  it  reasonable  to  suppose  that  after  relations 
like  this  had  continued  nearly  four  years  plaintiff  would 
not  be  in  a  position  to  understand,  even  without  express 
information,  the  purpose  of  so  large  a  loan? 

2.  For  it  must  be  remembered  that  during  all  this  period, 
according  to  plaintiff,  defendant  had  pursued  no  other 
vocation.  As  the  former  puts  it  (p.  98)  "we  were  all  gam- 
bling." Indeed  plaintiff's  counsel  sought  to  show  (p.  Ill ; 
cf.  134)  that  defendant  had  followed  that  pursuit  before 
coming  to  Shanghai.  What  then  was  the  natural  inference 
as  to  his  intended  use  of  the  Tls. 15,000?  He  certainly 
needed  not  that  amount  for  personal  expenses. 

3.  The  note  was  non-negotiable.  Contrary  to  his  counsel's 
impression  this  fact  did  not  escape  plaintiff's  attention  for 
he  answered  affirmatively  the  question  (p.  98)  "You  saw 
it  was  a  non-negotiable  note,  did  you?"  as  well  as  that 
propounded  by  his  counsel  (p.  99), 

"The  reason,  Mr.  Sexton,  why  you  were  not  so  particular  as  to 
whether  this  note  was  a  negotiable  or  ncto-negotiable  note  was  that 
you  and  Mr.  Price  were  partners?" 


432  I  EXTRATERRITORIAL  CASES. 

But  why  should  the  fact  of  his  partnership  with  defend- 
ant induce  him  to  accept  a  non-negotiable  note  unless  there 
were  reasons  for  not  wishing  it  to  pass  outside  the  part- 
nership? On  the  supposition  that  it  was  tainted  with 
illegality  the  form  of  the  note  is  easily  explained  for  no 
mere  assignment  would  cut  off  that  defense. 

4.  The  note  was  unsecured.  This  circumstance  becomes 
more  significant  when  considered  in  connection  with  No.  2 
above.  For  if,  as  plaintiff  claims,  defendant's  only  occu- 
pation was  that  of  a  gambler,  plaintiff"  must  have  relied 
upon  success  in  gambling  for  the  repayment  of  the  loan. 
And  here  it  should  be  noted  that  it  is  not  necessary,  in  order 
to  require  the  application  of  the  doctrine  now  considered, 
that  plaintiff  should  have  known  the  precise  form  of  illegal 
use  to  which  the  money  was  destined.  He  need  not  have 
known,  e.  g.,  that  defendant  planned  to  put  it  in  the  "Jess- 
field  Inn."  It  was  sufficient  if  plaintiff  knew,  or  had  reason 
to  believe,  that  the  fund  was  to  be  used  in  gambling  some- 
where.  It  cannot  be  overlooked,  however,  that  plaintiff 
and  defendant  had  jointly  opened  two  gambling  houses  in 
succession.  Plaintiff  refers  to  the  third  as  a  rival  house 
but  since,  as  he  also  testifies  (pp.  84,  92,  93,  98)  that  the 
"Alhambra"  was  then  prosperous,  why  should  defendant 
seek  to  interrupt  the  prosperity  he  shared  by  starting  a 
rival?  Is  it  not  more  reasonable  to  infer  that  the  opening 
of  the  third  was  merely  a  continuation  of  the  policy  which 
led  to  the  acquisition  of  the  "Alhambra"  by  the  same  in- 
terests which  controlled  the  "Alcazar"? 

It  is  of  course  true  that  an  innocent  lender  is  not  pre- 
cluded from  recovery  merely  because  the  borrower  uses  the 
money  for  an  unlawful  purpose.  But  proof  of  knowledge 
on  the  lender's  part  need  not  be  direct.  Here  as  elsewhere 
the  law  is  satisfied  with  circumstantial  evidence.  Nor  do 
the  courts  necessarily  require  proof  of  actual  knowledge; 
cognizance  of  facts  which  should  put  a  reasonable  man  on 
inquiry  are  deemed  sufficient. 

Thus  in  an  action  upon  a  note  given  for  the  purchase, 
of  liquors  by  a  resident  of  Maine  where  such  sales  are 
prohibited  it  was  contended  that  there  was  no  proof  of 
unlawful  intent.     But  the  court  held, 


SEXTON  V.  PRICE,  DEC.  26,   1914.  433 

"That  the  only  reasonable  and  legitimate  inference  to  be  drawn 
from  the  evidence  is  that  the  liquors  were  intended  for  unlawful  sale 
in  this  state.  The  defendant  was  a  hotel  keeper.  The  value  of  the 
liquors  purchased  was  $537,  for  which  he  gave  his  note  for  $437  and 
his  check  for  $100.  It  does  ncrt  appear  that  the  defendant  was  au- 
thorized by  law  to  sell  liquors  in  this  state  and  it  is  hardly  to  be 
supposed  that  he  would  purchase  liquors  to  such  an  amount  for  his 
personal  use.  We  think  that  the  facts  above  stated,  in  the  absence  of 
any  explanation,  warrant  the  conclusion  that  the  liquors  were  in- 
tended to  be  unlawfully  sold;  and  we  have  no  doubt  that  such  was 
the  fact." ' 

Here  the  amount  of  the  purchase  was  considered  a  suf- 
ficient circumstance  to  warrant  a  denial  of  recovery;  yet 
it  was  hardly  so  significant  as  the  amount  of  the  alleged 
loan  in  this  case. 

The  Indiana  Appellate  Court,^  in  upholding  a  similar 
judgment  in  an  action  for  the  price  of  liquors  considered 
the  intention  to  dispose  of  them  unlawfully  sufficiently 
proved  by  the  fact  that  plaintiff's  agent  was  aware  that 
defendant  was  operating  without  a  license  and  in  violation 
of  law,  a  situation  more  than  paralleled  in  the  case  at  bar. 

There  is  also  an  early  decision  ^^  of  this  court  in  which 
brokers  were  held  privy  to  the  illegal  intent  of  their  prin- 
cipals in  a  wagering  contract  because  of  circumstances  and 
facts  which  were  deemed  sufficient  to  put  them  on  inquiry. 

Finally  we  have  found  that  the  money  claimed  to  have 
been  loaned  to  defendant  almost  certainly  constituted  part 
of  the  proceeds  of  a  gambling  business  operated,  as  plain- 
tiff claims,  jointly  with  defendant.  In  a  sense,  therefore, 
this  is,  from  plaintiff's  standpoint,  a  suit  by  one  partner 
to  recover  an  overpayment  to  him  of  the  earnings  of  a 
partnership  avowedly  organized  for  the  sole  purpose  of 
conducting  a  business  which  the  law  brands  as  criminal. 
And,  as  was  declared  in  case  ^^  already  cited, 

"It  requires  neither  argument  nor  authority  to  show  that,  if  the 
thing   to  be  done  is  illegal,   the  contract  of  co-partnership  for  the 

'  Oakes  v.  Merrifield,  93  Me.  297,  45  Atl.  32. 

°  Terre  Haute  Brewing  Co.  v.  Hartman,  19  Ind.  App.  596,  49  N.  E. 
864. 

"Toeg  &  Read  v.  SufFert,  ante,  p.  112. 

"  Spies  V.  Rosenstock,  87  Md.  14,  39  Atl.  Rep.,  268. 

14008  O.  W. 28 


434  I  EXTRATERRITORIAL  CASES. 

purpose  of  doing  that  thing  is  equally  illegal,  for  otherwise  it  would 
only  be  necessary  to  form  a  co-partnership  or  a  corporation  in  order, 
with  impunity,  either  to  violate  the  law,  or  prosecute  a  business  con- 
trary to  the  public  policy  of  the  state." 

It  is  objected  that  this  defense  of  illegality  is  not  pleaded 
and  that  it  is  inconsistent  with  the  defenses  actually  set 
up.  We  are  not  sure  that  the  averment  in  paragraph  4 
of  the  answer  "that  said  alleged  note  is  without  considera- 
tion and  void"  is  not  sufficient  to  raise  the  defense  that 
it  is  void  for  any  reason.  But  in  any  event  it  is  well 
settled  that  where  the  evidence  discloses  such  a  condition 
the  court  should  take  notice  of  it  sua  sponte.  As  was  said 
by  the  Illinois  Supreme  Court  :^- 

"The  parties  could  not,  whether  by  mistake  or  design,  compel  the 
court  to  adjudicate  upon  their  alleged  rights  growing  out  of  a  contract 
void  because  against  public  policy  or  in  violation  of  public  law,  by  the 
simple  process  of  narrowing  their  pleadings.  The  court  itself  had 
the  right  to  know  the  nature  of  the  contract  it  was  called  upon  to 
enforce,  and  to  deny  all  relief,  where  it  appeared  that  such  contract 
was  in  violation  of  law  or  the  public  policy  of  the  state,  whether 
so  alleged  in  the  pleadings  or  not.  To  hold  otherwise  would  sub- 
ordinate the  courts  to  the  ingenious  devices  of  men  engaged  in 
illegal  and  even  criminal  transactions  and  compel  them  to  carry  out 
in  the  solemn  forms  of  law,  and  by  its  resistless  power,  transactions 
which  the  same  law  had  pronounced  criminal  and  void." 

III. 

Thus  far  we  have  considered  the  case  from  the  stand- 
point of  the  first  defense,  adopting  plaintiff's  theory  in 
relation  thereto.  But  in  our  judgment  the  second  defense 
finds  more  corroboration  than  the  first. 

Defendant  claims  the  execution  of  an  instrument  of  set- 
tlement between  the  parties  long  after  the  one  sued  on  was 
given.  He  is  unable  to  produce  the  document,  expressing 
his  belief  that  it  has  been  abstracted,  but  two  entirely  dis- 
interested and  credible  witnesses  (pp.  41,  47)  testify  to 
having  seen,  no  more  than  two  years  ago,  a  paper  pur- 
porting to  be  such  an  act  of  settlement  and  containing  one 
or  more  signatures  which  they,  or  at  least  one  of  them, 

"  Wright  V.  Cudahy,  168  111.  86,  48  N.  E.  Rep.,  39. 


SEXTON  V.  PRICE,  DEC.  2  6,   1914.  435 

recognized  as  including  that  of  the  attorney  who  also  tes- 
tifies (p.  37)  to  having  drawn  it.  Now,  if  this  instrument 
were  fabricated  it  must  have  been  done  before  it  was  seen 
by  these  witnesses  and  when  there  was  little  apparent  rea- 
son for  resorting  to  such  a  desperate  expedient,  since  there 
is  no  evidence  of  an  attempt  by  plaintiff  to  enforce  pay- 
ment then  or  earlier. 

Plaintiff  denies  that  he  entered  into  a  settlement  but 
he  seems  equally  certain  that  he  never  acknowledged  pay- 
ment of  the  Gordon  note  (Exhibit  1)  altho  the  receipt  (Ex- 
hibit 2)  purports  to  be  signed  by  him.  Plaintiff's  counsel 
contends  that  this  receipt  is  a  forgery.  But  plaintiff,  while 
testifying  said  (p.  90)  in  reply  to  the 

"Q.  I  ask  you  now  if  that  is  youi*  signature? 

A.  I  won't  say  it  is  not  mine, 

Q.  Will  you  swear  that  it  is  not  your  signature? 

A.  No;  I  won't  swear  it  is  not  mine. 

Q.  It  looks  like  it,  don't  it? 

A.  Yes  sir;  it  does." 

A  former  bar  boy  at  the  "Alhambra"  also  identifies  the 
signature  as  plaintiff's  (p.  136) . 

This  claim  of  settlement  seems  to  offer  a  better  explana- 
tion, than  any  other,  of  the  delay  in  suing.  Here  is  a 
note  executed,  it  is  agreed,  on  May  4,  1909,  yet  no  suit  was 
brought  until  July  22,  1914,  more  than  five  years  after  its 
maturity.  Plaintiff's  first  explanation  is  (p.  99)  that  de- 
fendant was  absent.  But  the  note  matured  on  June  4, 
1909,  and  defendant  seems  to  have  remained  in  Shanghai 
continuously  for  more  than  a  year  afterward  (pp.  71,  72) . 
Indeed  he  appears  to  have  been  gone  only  "six  or  seven 
months"  (p.  72)  and  plaintiff  states  that  "he  called  on  me 
as  soon  as  he  arrived  here."  Defendant's  absence,  there- 
fore, will  not  account  for  the  delay. 

Another  explanation  is  that  (p.  99)  "He  didn't  have  any 
money."  But  usually  a  creditor  is  the  more  active  when 
his  debtor  is  in  failing  circumstance's  and  the  absence  of 
money  will  not  interfere  with  putting  a  valid  claim  judg- 
ment. Besides  there  is  no  evidence  from  which  we  could 
find  that  defendant's  financial  standing  has  improved  since 


436  I  EXTRATERRITORIAL  CASES. 

the  note  matured.  Especially  in  view  of  the  fact  that 
during  all  this  time  plaintiff  was  receiving  no  interest  on 
this  relatively  large  sum,  this  very  long  delay  in  suing 
seems  almost  inexplicable  from  the  standpoint  of  ordinary 
business  dealing,  if  the  instrument  evidences  a  live  and 
bona  fide  indebtedness. 

On  the  whole  then  we  must  find  that  the  record  contains 
evidence  at  least  sufficient  to  shift  to  plaintifi  the  burden 
of  proving  the  validity  of  the  note  sued  on  and  that  said 
burden  has  not  been  met.  We  have  accordingly  no  alter- 
native but  to  apply  the  maxim  above  quoted  and  leave  the 
parties  where  they  were. 

It  is  therefore  considered  and  adjudged  that  plaintiff 
take  nothing  by  his  petition  and  that  neither  party  recover 
costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Wong  Tsung  Wai,  Plaintiff,  v.  Robert  Russell  Endicott, 

Defendant. 

[Civil  action  No.  133;  filed  December  26,  1914,] 

SYLLABUS. 
(By  the  Court.) 

1.  BOUGHT   AND    SOLD    NOTES.     Instrument   sued    on   found    to    con- 

stitute one  of  a  series  of  "bought  and  sold  notes." 

2.  Id.  :  The  Broker  is  not  usually  a  party  to  such  instruments.     He  is 

neither  entitled  to  enforce  them  nor,  in  the  absence  of  an  ex- 
press assumption,  subject  to  liability  thereon. 

3.  Id.  :  Id.  :  Evidence  found  to  disclose  no  claim  of  such  assumption. 

Messrs.  Fleming  &  Davies,  by  Mr.  Davies,  for  plaintiff. 
(S.  Houston  McKean,  Esq.,  for  defendant. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  damages  for  breach  of  an 
alleged  contract  to  deliver  certain  Langkat  shares  pur- 
chased by  the  defendant  on  the  account  of  plaintiff.  The 
defendant,  who  is  a  stock  broker,  admits  that  he  executed 
an  instrument  (Ex.  B)  of  which  the  following  is  a  copy: 


WONG  TSUNG  WAI  V.  ENDICOTT,  DEC.  2  6,  1914.  437 

"R.  R.  ENDICOTT 

Member  of  the  Shanghai  Stock  Exchange 

Purchase  Contract  Note. 

No 

Shanghai,  11th  Feb.,  1914. 
Wong  Tsung  Wai,  Esq., 

Shanghai. 
Dear  Sir: 

I  have  this  day  BOUGHT  on  your  account  (50)  Fifty  Shares 
in  the  Langkats,  Price  (Tls.  35.00)  Taels  Thirty-five  per  share. 

Cum  dividends,  new  issue  of  shares,  interest  and  all  benefits 
accruing  and  liabilities  attaching  to  the  above-named  Shares  from 
the  above  date. 

Payment  to  be  made  on  delivery  of  scrip  and  transfer  on  March 
Settlement  Day  1914. 

Brokerage  i%. 

Yours  faithfully, 

R.   R.   ENDICOTT, 

Broker. 

N.  B. — Where  the  Sale  and  Purchase  is  made  between  my  own 
principals  brokerage  is  charged  to  both  Buyer  and  Seller. 

N.  B. — This  contract  is  made  subject  in  all  respects  to  the  Rules 
and  Regulations  for  the  time  being  and  from  time  to  time  in  force 
of  the  Shanghai  Stock  Exchange." 

Both  parties  agree  that  the  instrument  above  set  forth 
was  not,  originally,  a  separate  one  but  was  attached  to 
another  of  similar  phraseology,  except  that  it  (Exhibit  A) 
is  addressed  to  the  defendant  instead  of  the  plaintiff,  is 
signed  by  the  latter,  contains,  immediately  following  the 
address,  the  phrase  "I  confirm  the  purchase  by  you  on  my 
account,"  etc.,  instead  of  the  phrase  appearing  in  a  similar 
position  in  Exhibit  B,  and  that,  following  the  word  "broker- 
age," appears  in  writing  the  following  ''Contract  guaranteed 
by  H,  C.  Sim,"  the  latter  being  conceded  to  be  one  Hung 
Chuan  Tien,  mentioned  in  the  answer. 

In  addition  to  the  foregoing,  defendant  testifies  that  there 
was  also  attached  to  the  original  instrument  a  third,  signed 
by  said  H.  C.  Sim,  and  similar  to  the  other  two  except  that 
it  was  entitled,  "Sale  contract  note,"  was  addressed  to  the 
defendant  and  contained  the  phrase,  following  the  address, 
"I  confirm  the  sale  by  you  on  my  account,"  etc. 


438  I   EXTRATERRITORIAL  CASES. 

It  is  evident  that  we  have  here  what  are  termed  in  the 
books  "bought  and  sold  notes,"  and  which  are  defined  as 

"Documents  which  are  usually  delivered  by  brokers  to  their  prin- 
cipals on  the  conclusion  of  a  contract  of  sale  and  purchase,  the  bought 
note  being  delivered  to  the  buyer,  and  the  sold  note  to  the  seller."  * 

A  recognized  authority  ^  sayls 

"When  a  broker  makes  a  contract  he  puts  the  terms  into  writing 
and  delivers  to  each  party  a  copy  signed  by  him.  The  copy  delivered 
to  the  seller  is  called  the  sold  note,  that  delivered  to  the  buyer  is 
called  the  bought  note.  The  sold  note  begins  'Sold  for  A  to  X'  and 
is  signed  'M  broker,'  the  bought  note  begins  'Bought  for  X  of  A,' 
and  is  signed  'M  broker.'  But  the  forms  may  vary  and  with  them 
the   broker's   liability." 

The  same  authority  defines  a  broker  as  "an  agent  pri- 
marily to  establish  privity  of  contract  between  two 
parties."  ^ 

To  such  a  contract  as  this,  therefore,  a  broker  is  not  con- 
sidered a  party;  he  is  merely  a  middleman  whose  function 
it  is  to  bring  the  parties  together.  Hence  it  was  held  in 
one  of  the  early  cases,*  in  which  such  instruments  as  those 
here  involved  were  construed,  that  the  broker  was  not 
entitled  to  enforce  any  liability  arising  therefrom.  And 
clearly  if  the  broker  is  not  entitled  to  sue  on  such  a  contract, 
neither  is  he  liable  to  be  sued  thereon,  for  the  right  and 
the  liability  are  reciprocal. 

It  will  be  noticed  that  the  instrument  upon  which  plain- 
tiff bases  his  action,  and  which  is  known  in  the  books  as  a 
"bought  note,"  contains  no  express  undertaking  on  defend- 
ant's part.  On  its  face  it  is  hardly  more  than  a  notice  by 
defendant  that  he  has  bought  the  shares  on  plaintiff's  ac- 
count and  that  the  latter  is  to  make  payment  on  delivery. 
The  absence  of  such  an  undertaking  from  instruments  of 
this  class  has  been  a  subject  of  pointed  comment  by  the 
Courts.     In  a  leading  case  ^  decided  by  the  Court  of  Appeal 

'  5  Cyc,  860,  citing  Sweet,  Law  Dictionary. 
=  Anson  on  Contracts  (13th  ed.),  398   (Huffcutt's  ed.,  423). 
^Id. 

*  Farlie  v.  Fenton,  L.  R.  5  Exch.  Cas.  169,  where  the  form  of  the 
instrument  was  in   no  way  essentially  different  from   this. 
'  Southwell  V.  Bowditch,  1  C.  P.  D.,  374,  45  L.  J.  Rep.,  630. 


WONG  TSUNG  V/AI  V.  ENDICOTT,  DEC.  2  6,  1914.        439 

in  England  (where  such  instruments  appear  to  be  most 
common  and  have  been  most  frequently  construed)  that 
eminent  tribunal,  reversing  the  judgment  of  the  Common 
Pleas  Division,  held  that  the  broker  assumed  no  personal 
liability  on  an  instrument  substantially  similar  to  that  here 
sued  upon. 

In  argument  it  was  objected  that  unless  the  defendant 
were  assumed  to  have  undertaken  delivery  of  the  shares 
in  question  the  contract  would  be  meaningless  and  there 
would  be  no  reason  for  entering  into  it.  But  that  alone 
would  not  be  sufficient  to  fix  liability  which,  as  suggested 
in  the  case  last  cited,  must  rest  upon  express  language 
construed  according  to  its  natural  meaning. 

It  is  sometimes  held,''  indeed,  that  evidence  of  usage  is 
admissible  to  charge  the  broker  with  liability  in  such  cases. 
But  no  such  evidence  is  offered  here.  On  the  contrary,  the 
testimony  of  Mr.  W.  A.  Reed,  Secretary  of  the  Shanghai 
Stock  Exchange,  was  to  the  effect  that,  according  to  the 
usage  of  that  institution,  instruments  on  blue  paper  such 
as  that  here  sued  upon  were  understood  as  mere  "brokers' 
contracts,"  i.  e.,  those  in  which  the  broker  brought  the 
buyer  and  seller  together  but  assumed  no  personal  liability. 

Plaintiff's  counsel  also  endeavors  to  draw  a  distinction 
between  the  phraseology  of  the  instrument  sued  on  and 
those  construed  in  the  authorities  here  cited.  The  latter, 
as  a  rule,  set  out  only  the  "sold  note"  which  is  variously 
worded  "I  have  this  day  sold  by  your  order  and  for  your 
account;"^  "I  have  this  day  sold  you  on  account  of" 
etc. ;  ®  "we  have  this  day  sold  for  your  account."  ^  But  we 
do  not  see  that  the  phrase  in  the  note  sued  on  "I  have  this 
day  bought  on  your  account"  constitutes  any  greater  under- 
taking by  the  broker.  Between  the  phrases  ''on  your  ac- 
count" and  "for  your  account"  we  see  no  essential  difference. 

It  is  further  objected  that  defendant's  services  as  a 
broker  were  unnecessary  since  the  parties  in  question,  both 
being  Chinese,  could  have  dealt  quite  as  well  without  him. 

*  As  in  Fleet  v.  Murton,  L.  R.  7  Q.  B.  126,  41  L.  J.  Rep.,  49. 
'  Southwell  V.  Bowditch,  1  C.  P.  D.  374,  45  L.  J.  Rep.,  630. 
'Fairlie   v.    Fenton,   L.    R.   5    Exch.   Cas.    169. 
'  Fleet  V.  Murton,  L.  R.  7  Q.  B.  126,  41  L.  J.  Rep.,  49. 


440  I  EXTRATERRITORIAL  CASES. 

We  have  no  means  of  knowing  what  elements  of  mutual  dis- 
trust or  otherwise  may  have  entered  into  the  transaction 
and  the  defendant  himself  states  that  he  does  not  know 
why  he  was  called  into  it.  But  it  seems  to  us  not  nearly 
so  improbable  that  he  should  act  as  a  broker  for  these 
Chinese  as  that  he  should  assume  personal  liability  for  the 
delivery  of  shares  (then  worth  Taels  1,750)  on  a  rising 
market  for  a  brokerage  commission,  as  set  forth  in  the 
petition,  of  not  more  than  Taels  8.75. 

There  is  no  evidence  of  any  parol  assumption  of  liability 
on  the  part  of  the  defendant.  On  the  contrary,  plaintiff  tes- 
tifies that  he  understood  nothing  of  what  defendant  said.  If 
the  latter  is  liable  at  all  it  must  be  by  virtue  of  the  instru- 
ment and,  as  has  been  seen,  it  belongs  to  a  class  which  is 
construed  by  courts  of  the  highest  authority  as  conferring 
on  the  broker  neither  liability  nor  right  of  action. 

There  was  much  discussion  in  evidence  and  argument  of 
the  question  whether  defendant  notified  plaintiff  that  he 
was  acting  merely  as  a  broker  for  the  seller,  H.  C.  Sim 
(Tien).  The  defendant  testified  that  he  did  so  state  to 
the  plaintiff  thru  Tien  himself  who,  the  plaintiff  says, 
was  his  friend  and  thru  whom,  as  interpreter,  he  admits 
having  conducted  at  least  some  of  the  negotiations,  tho 
he  also  says  that  Tien  did  not  interpret  such  a  statement 
as  the  defendant  claims  to  have  made.  This  question  might 
be  important  if  plaintiff  had  really  established  a  contract 
in  which  defendant  had  assumed  liability,  for  the  rule  which 
renders  liable  the  agent  of  an  undisclosed  principal  applies, 
of  course,  only  where  the  liability  has  been  actually  as- 
sumed. But  here,  as  has  been  seen,  the  written  instrument 
does  not  amount  to  an  assumption  of  liability  and  there 
is  no  evidence  of  any  parol  undertaking.  Hence  it  is  not 
really  material  whether  defendant  expressly  disclosed  to 
plaintiff  the  fact  that  he  was  Mr.  Tien's  broker,  for  in  the 
contract  which  he  signed  defendant  did  not  purport  to  bind 
himself  personally.  If,  however,  the  question  were  a  mate- 
rial one,  it  would  seem  very  dangerous  to  hold,  in  a  com- 
munity where  so  many  languages  are  spoken,  that  where 
two  parties  are  dealing,  neither  one  of  whom  speaks  the 
language  of  the  other,  a  disclosure  of  the  agency  made  thru 


IN  RE  ALFORD,  JAN.  22,  1915.  441 

one  who  was  employed  by  the  other  party  in  at  least  some 
of  the  negotiations  would  be  insufficient. 

On  the  whole,  we  have  no  alternative  but  to  find  on  the 
evidence  before  us  that  plaintiff  is  not  entitled  to  recover 
and  it  is  accordingly  considered  and  adjudged  that  he  take 
nothing  by  his  petition  and  that  defendant  recover  his 
costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  adoption  of  Alice  Alford,  a  minor. 

[Cause  No.  415;  filed  January  22,  1915.] 

SYLLABUS. 
( By  the  Court. ) 

1.  ADOPTION:  JURISDICTION.     This  Court  has  jurisdiction  to  hear  and 

determine  a  petition  by  American  citizens  for  the  adoption  of 
a  minor  child. 

2.  Id. :  Consent:  Abandonment.     It  is  unnecessary  to  obtain  consent 

for  such  adoption  from  a  parent  who  has  abandoned  the  child. 

3.  Id.:  Law.     The  Acts  of  Congress  of  June  6,  1900   (31  U.  S.  Stats. 

at  Large,  Sess.  I.  Ch.  786,  tit.  Ill,  Ch.  IV)  and  March  3,  1901, 
(Id.,  Sess.  II,  Ch.  854,  sec.  395)  prescribing  the  procedure  in 
adoption  cases,  applied. 

4.  Id.  :   Evidence  found  to  establish  the  requisites  prescribed  by  said 

act  for  a  decree  of  adoption. 

Messrs.  Fleming  &  Davies,  for  the  petitioners. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  was  given  an 
opportunity  to  present  objections  in  behalf  of  the  govern- 
ment. 

Lobingier,  J.: 

This  is  a  petition  filed  by  a  husband  and  wife,  American 
citizens  residing  in  China,  for  the  adoption  of  a  minor 
child,  now  in  their  custody,  and  likewise  the  offspring  of 
American  citizens.  Being  the  first  instance,  so  far  as  we 
have  been  able  to  ascertain,  where  the  jurisdiction  of  this 
Court  has  been  invoked  for  such  purpose,  it  seems  advisable, 
if  not  necessary,  to  consider  first  the  legal  basis  upon  which 
such  jurisdiction  could  be  exercised. 

This  Court  is  invested  by  its  Organic  Act  with 


442  I  EXTRATERRITORIAL  CASES. 

"exclusive  jurisdiction  in  all  cases  and  judicial  proceedings  whereof 
jurisdiction  may  now  be  exercised  by  United  States  consuls  and 
ministers." ' 

The  first  of  these  treaties  (1844)  reserved  to  our  own 
Government 

"all  questions  in  regard  to  rights,  whether  of  property  or  perso7i, 
arising  between  citizens  of  the  United  States  in  China."  ^ 

By  the  Act  of  1860,  Congress  invested  the  minister  and 
consuls  of  the  United  States  in  China 

"in  regard  to  civil  rights  whether  of  property  or  person  *  *  * 
with  all  the  judicial  authority  necessary  to  execute  the  provisions  of 
such  treaties  respectively." ' 

It  will  thus  be  seen  that  this  Court  succeeds  to  jurisdic- 
tion which  expressly  includes  all  questions  respecting  the 
rights  of  "perso7i"  of  American  citizens  in  China.  In  the 
Anglo-American  legal  system  adoption  is  purely  statutory, 
having  been  borrowed  from  the  Civil  Law ;  *  but  Black- 
stone  classifies  and  discusses  ^  the  entire  law  of  parent 
and  child  under  the  title  of  "Rights  of  Persons"  and  his 
phraseology,  so  familiar  to  American  lawyers  and  law- 
makers of  the  middle  nineteenth  century,  no  doubt  sug- 
gested the  language  used  in  both  treaty  and  statute  above 
quoted.  And  as  the  adoption  of  a  child  involves  not  only 
rights  of  its  person  but  also  those  of  the  adopting  parents, 
whose  legal  status  is  thereby  afi'ected  to  the  extent  that  a 
new  relationship  is  created  between  them  and  the  child, 
it  would  seem  clear  that  a  decree  of  adoption  is  nothing 
more  than  the  exercise  of  the  jurisdiction  so  conferred. 

We  are  not  restricted,  however,  in  determining  this  ques- 
tion, to  treaties  and  statutes  relating  exclusively  to  China. 
For  the  act  last  quoted  further  provides  that  the  jurisdic- 
tion there  conferred 


'Act  of  Congress  of  .June  30,  1906;  34  U.  S.  Stats,  at  Large,  Pt. 
I,  Ch.  3934,  sec.  I,  p.  814. 

'8  U.  S.  Stats,  at  Large,  597,  Article  XXV;  Malloy  Treaties,  etc. 
I,  203,  ante  p.  2. 

*  12  U.  S.  Stats,  at  Large,  p.  73,  sec.  3;  U.  S.  Rev.  Stats.,  sec.  4085. 

-  Gray,  C.  J.  in  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.,  321. 

^  Commentaries,   Bk.   I,   Ch.   16. 


IN  RE  ALFORD,  JAN.  22,   1915.  443 

"in  both  criminal  and  civil  matters  shall,  in  all  cases,  be  exercised 
and  enforced  in  conformity  with  the  laws  of  the  United  States,  which 
are  hereby,  so  far  as  is  necessary  to  execute  such  treaties,  respect- 
ively, and  so  far  as  they  are  suitable  to  carry  the  same  into  effect, 
extended  over  all  citizens  of  the  United  States  in  those  countries 
(including  China)  and  over  all  others  to  the  extent  that  the  terms 
of  the  said  treaties,  respectively  justify  or  require." " 

Under  the  doctrine  of  the  Court  of  Appeals  "  interpreting 
the  phrase  "laws  of  the  United  States"  any  applicable  and 
appropriate  act  of  Congress,  tho  passed  originally  for 
another  locality,  is  in  force  here  if  it  is  "necessary  to  exe- 
cute the  treaties"  and  "suitable  to  carry  the  same  into 
effect." 

Now  Congress  has  passed  two  such  acts  with  reference 
to  adoption.  Upon  the  District  of  Columbia  Supreme 
Court  it  has  conferred  jurisdiction  "to  hear  and  determine 
any  petition  that  may  be  presented  by  a  person  or  a  hus- 
band and  wife  residing  in  the  District  praying  the  priv- 
ilege of  adopting  any  minor  child."  *  Later  it  conferred 
such  jurisdiction  upon  District  Court  Commissioners  in 
Alaska,  providing  a  rather  detailed  procedure  for  its  exer- 
cise." There  being  no  other  judicial  authority  here  except 
this  Court  to  exercise  such  jurisdiction,  it  would  seem  quite 
in  harmony  with  the  doctrine  of  the  Court  of  Appeals  to 
apply  these  provisions. 

II. 

Both  acts  require  the  consent  of  "the  parents"  for  such 
adoption.  In  the  case  before  us  the  petitioners  present  a 
document  signed  by  the  mother,  whose  signature  is  also 
proven  aliunde,  expressing  such  consent.  The  document 
is  not  signed  by  the  father  but  the  testimony  is  that  he 
has  abandoned  the  child  and,  as  stated  in  a  work  of  au- 
thority,'" 


'  12  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  179,  sec.  4;  U.  S.  Rev.  Stats., 
sec.  4086. 

'  Biddle  v.  United  States,  ante,  p.  120. 

*  Act  of  February  26,  1895,  Sess.  Ill,  28  U.  S.  Stats,  at  Large,  Ch. 
134,  p.  687;  reenacted,  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec. 
395. 

'31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  Ill,  Chap.  IV, 
sees.  21-31. 

"  1  Cyc,  922. 


444  I  EXTRATERRITORIAL  CASES. 

"where  a  parent  has  relinquished  all  claims  on  his  minor  child  by 
abandonment,  his  consent  to  the  adoption  of  such  child  is  unneces- 
sary." 

Said  Code  provisions  likewise  require  that  the  Court  be 
satisfied 

1.  "Of  the  identity  and  relations  of  the  persons;" 

2.  "That  the  petitioner  is  of  sufficient  ability  and  in  all  respects 
a  proper  person  to  bring  up  the  child;" 

3.  "That  it  is  fit  and  proper  that  such  adoption  should  take  ef- 
fect." " 

We  find  from  the  evidence  that  all  of  these  requirements 
are  fully  met. 

The  petition  prays  also  for  a  change  of  the  child's  name, 
which  is  likewise  expressly  authorized  by  the  statute. ^- 

It  is  accordingly  considered  and  decreed  that  the  said 
minor  child,  heretofore  known  as  Alice  Alford,  be  named 
and  hereafter  known  as  Elizabeth  Parker,  and  shall  be  to  all 
legal  intents  and  for  all  purposes  the  child  of  the  petitioners, 
Robert  H.  Parker  and  Mollie  R.  Parker,  his  wife,  being  as 
much  their  heir   at   law   as   if  born   to   said   petitioners. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
H.  D.  Rodger  v.  A.  R.  Eager. 

[Cause  No.  407;  filed  January  25,  1915.] 

SYIXABUS. 

(By  the  Court) 

1.  CONTRACTS.     Courts  will  not  make  contracts  for  parties  but  will 

interpret  and  apply  contracts  which  the  parties  themselves 
have  made;  unless  grounds  of  rescission,  like  fraud  or  mutual 
mistake,  are  shown. 

2.  Id.  :   Evidence  found  not  to  show  such  grounds  as  regards  either 

party  in  this  case. 

3.  Id.  :  Id.  :  Onus  Probandi.     The  party  seeking  recovery  on  a  con- 

tract assumes  the  burden  of  showing  that  his  claim  comes  with- 
in its  terms. 

"  31  U.  S.  Stats,  at  Large,  sess.  I.  Ch.  786,  tit.  Ill,  sec.  26. 
"Id.  sec.  31    (457). 


RODGER  V.   HAGER,  JAN.   25,    1915.  445 

4.  Id.  :    Id.  :    Evidence  found  insufficient  to   establish   that  net   earn- 

ings under  the  contract  in  suit  reached  the  amount  of  $3,000 
during  the  disputed  dividend  period. 

5.  Id.  :    Estoppel.     Where   the   contract   required    the   "statement   of 

dividend"  to  be  submitted  to  one  party  "for  approval"  and  he 
not  only  approved  it  but  later  made  a  general  settlement  with 
the  other  party,  the  former  cannot  subsequently  be  heard  to 
question  such  approval  on  the  ground  that  the  latter  furnished 
incorrect  figures. 

H.  D.  Rodger,  Esq.,  pro  se,  with  whom  was  Mr.  Stirling 
Fessenden  of  Messrs.  Jemigan  &  Fessenden. 
Joseph  W.  Rice,  Esq.,  for  defendant. 

LOBINGIER,  J.: 

This  is  a  suit  for  an  accounting  under  a  contract  (Ex- 
hibit A)  of  emplojTnent  which,  after  awarding  plaintiff 
a  monthly  salary  of  $220,  Shanghai  currency,  for  "manag- 
ing the  China  agency  of  the  International  Correspondence 
Schools,"  etc.,  provides  that  he  shall 

"in  addition,  share  in  the  semi-annual  dividends  of  the  China  Agency 
I.  C.  S.  These  dividends  shall  be  declaimed  on  the  first  day  of  January 
and  the  first  day  of  July  of  each  year  for  the  three  years  of  this 
agreement,  and  shall  consist  of  the  earnings  of  the  Agency  from  all 
business  transacted  by  it,  after  deducting  any  amounts  owing  by 
said  Agency  and  carrying  forward  such  reserve  as  may  be  decided 
desirable,  by  party  of  the  first  part.  Statement  of  dividend  shall 
in  all  cases  be  submitted  to  party  of  the  first  part  (or  to  R.  N.  Clark, 
his  attorney  in  fact)  for  approval  before  becoming  payable  to  any 
of  the  parties  having  an  interest  therein.  The  share  of  the  party 
of  the  second  part  in  each  semi-annual  dividend  so  declaimed  and  ap- 
proved shall  depend  upon  the  amount  of  the  dividend  and  shall  be 
as  follows:  Fifteen  per  cent  (15%)  for  semi-annual  dividend  from 
Three  Thousand  ($3,000)  to  less  than  Five  Thousand  ($5,000)  Dol- 
lars; Twenty  per  cent  (20%)  from  Five  Thousand  ($5,000)  to  less 
than  Seven  Thousand  ($7,000)  Dollars;  and  Twenty  Five  per  cent 
(25%)   from  Seven  Thousand   ($7,000)    Dollars  up." 

It  is  this  last  quoted  portion  of  the  contract  which  gives 
rise  to  the  difference  between  the  parties;  for  it  is  ad- 
mitted that  the  monthly  salary  provided  for  in  the  first 
excerpt  was  paid  in  full  up  to  the  final  termination  of  plain- 
tiff's connection  with  defendant,  which  was  on  October  1, 
1914.     The  bill  avers 


446  I  EXTRATERRITORIAL  CASES. 

"that  the  defendant  has  refused  and  still  refuses  to  declare  div- 
idends for  the  periods  January  first  to  July  first,  1914,  and  July  first 
to  October  first,  1914,  and  also  refuses  to  pay  the  share  of  this  div- 
idend which  is  due  and  owing  to  the  plaintiff  in  accordance  with  the 
terms   and   conditions  of   the   aforementioned   agreement." 

It  will  be  seen  that  the  contract  clause  last  above  quoted 
does  not  entitle  plaintiff  to  a  share  in  any  and  all  dividends 
earned  by  the  business  but  only  in  those  which  exceed 
$3,000.  It  is  clear,  then,  that  the  burden  rests  upon  plain- 
tiff to  prove  that  dividends  of  such  an  amount  were  actually 
earned.  In  other  words,  it  is  for  plaintiff,  who  invokes 
this  special  provision  of  the  contract,  to  bring  himself 
within  its  terms  rather  than  for  defendant  to  show  the 
contrary. 

Now  the  only  specific  testimony  as  to  the  earnings  of 
the  business  during  the  first  half  of  1914  is  that  of  R.  S. 
Adams  who  testified  to  some  experience  as  an  accountant, 
and  that  he  has  examined  the  books  of  the  company  in  ques- 
tion, and  finds  the  actual  earnings,  over  and  above  debts 
and  reserve,  to  have  been  no  more  than  $444.12,  This  re- 
sult is  likewise  embodied  into  the  statement,  Exhibit  15A, 
whose  cash  assets,  plaintiff  assumes,  ''are  correct."  Said 
statement  shows  a  credit  balance  of  $3,256.49,  one  item 
($277.80)  of  which  plaintiff  claims  is  improperly  included. 
It  is  conceded  that  this  represents  fees  advanced  by  stu- 
dents for  membership  in  a  "fraternity"  which  disbanded 
within  the  year  for  which  payment  was  made.  Defendant 
claims  that  these  fees,  being  unearned,  are  returnable  to 
the  students  and  therefore  constitute  "amounts  owing  by 
said  agency"  within  the  language,  above  quoted,  of  the 
contract.  It  moreover  gives  defendant  not  a  little  discre- 
tion in  fixing  the  amount  of  the  dividend  since  he  is  vested 
with  power  of  "carrying  forward  such  reserve  as  may  be 
decided  desirable"  by  him  and  the  "statement  of  dividend 
shall  in  all  cases  be  submitted  to"  defendant  "for  approval 
before  becoming  payable."  These  rather  sweeping  clauses 
may  give  defendant  a  very  considerable  advantage  in  the 
transaction.  But  we  must  construe  the  contract  as  we  find 
it,  and  plaintiff  was  not  obliged  to  sign  it  if  he  thought  these 
clauses  inequitable. 


RODGER  V.   HAGER,  JAN.   25,    1915.  447 

Two  other  items  of  $675.07  and  $688.25  are  stated  by 
plaintiff  in  his  brief  to  represent  "instruction  department 
expenses"  for  the  months  of  May  and  June,  1914,  which 
"will  be  paid  by  the  home  office  *  *  *  are  merely  ad- 
vanced *  *  *  and  were  first  earned  by  this  agency." 
But  we  find  no  proof  as  to  tuhen  they  were  earned  and  in 
fact  no  showing  that  they  have  been  earned  except  the 
statement  in  plaintiff's  brief  and  "Exhibit  I"  which  is 
really  not  evidence  but  merely  a  portion  of  his  argument. 
Unless  these  amounts  were  earned  by  the  agency  within 
the  half  year  ending  July  1,  1914,  they  would  not  afford  a 
basis  for  computing  dividends,  under  the  contract,  for  that 
period. 

Assuming  however  that  they  tvere  so  earned  and  adding 
them  to  the  other  items  claimed  by  plaintiff,  the  total  still 
falls  far  short  of  the  $3,000  required  by  the  contract  be- 
fore plaintiff  may  participate.  For  then  the  account 
stands : 

I         $277.80 
Items  claimed  by  plaintiff I  675.07 

I  688,25 

Item  admitted  by  defendant 444.12 

Total  2,085.24 

Plaintiff  however  states  in  his  brief  (p.  3)  that 

"in  checking  thru  the  claim  book  he  found  claims  amounting  to  Gold 
$1,951.39  or  Mexican  $4,878.47  over  and  above  the  amount  owing 
to  the  Head  Office  of  the  School.  These  claims  will  be  paid  in  due 
course  and  this  Agency  will  undoubtedly  receive  credit  for  all  such 
claims,  therefore  they  must  be  looked  upon  as  an  asset  and  reckoned 
as  such." 

He  further  says  (p.  5)  : 

"This  will  leave  the  claims  amounting  to  more  than  Gold  $1,951.39 
or  Mexican  $4,878.47  to  be  held  over  to  balance  the  amounts  owed 
by  the  Agency  (including  the  $2,757.99  owed  to  Mr.  Clark),  and  these 
claims,  together  with  the  other  amounts  owed  to  the  Agency  by 
students,  will  far  more  than  offset  any  monies  owed  by  the  Agency." 

And  as  the  beginning  of  his  argument  on  this  point 
(p.  2)  he  states  his  theory  of  the  way  dividends  ought  to  be 
computed,  as  follows : 


448  I  EXTRATERRITORIAL  CASES. 

"At  the  end  of  each  period  the  entire  assets  of  the  Agency  were 
considered  including  the  monies  on  hand  and  in  the  bank  and  all 
amounts  owing  to  the  Agency  and  all  amounts  owing  by  the  Agency. 
If  the  amounts  owing  to  the  Agency  were  greater  than  the  amounts 
owing  by  the  Agency  then  this  difference  would  be  an  earned  asset 
on   which  dividends  were  declared." 

But  the  contract  recognizes  only  "earnings  of  the  agency" 
and  nowhere  authorizes  "amounts  owing  to  the  agency"  to 
be  added  unless  they  are  also  "earnings."  Now  it  will 
hardly  be  contended  that  "claims  against  the  home  office" 
become  "earnings  of  the  agency"  before  they  are  allowed. 
They  may  be  contingent  assets  but  they  are  not  earnings 
until  they  are  either  allowed  by  the  home  office  or  judicially 
recognized.  Otherwise  the  mere  presentation  of  a  claim 
would  be  sufficient.  But  plaintiff  himself  admits  (p.  3) 
that  some  claims  "have  been  disallowed"  and  it  is  not  con- 
tended that  any  of  those  in  question  have  been  allowed. 
Indeed  plaintiff  does  not  refer  us  to  any  evidence  upon 
which  his  computation  is  based  nor  express  a  belief  as  to 
when  these  claims  will  be  paid.  We  can  only  follow  the 
contract  which  requires  actual  "earnings"  and  we  are  un- 
able to  find  from  the  evidence  that,  during  the  first  half  of 
1914,  the  business  in  question  realized  such  earnings,  to 
the  amount  of  $3,000. 

II. 

As  already  stated,  the  relations  between  the  parties  were 
finally  terminated  on  October  1,  and  there  is  considerable 
conflict  in  the  testimony  as  to  just  what  these  relations  were 
during  the  last  three  months.  Plaintiff  admits  that  he  was 
absent  from  defendant's  office  from  before  July  1  until 
early  in  September,  but  says  that  this  was  unavoidable  on 
account  of  sickness  and  that  from  his  return  during  the 
first  part  of  September  until  the  end  of  that  month  he 
continued  to  act  in  the  capacity  provided  for  in  the  con- 
tract. Defendant  denies  this  and  claims  that  plaintiff's 
presence  at  the  office  after  his  return  was  merely  for  the 
purpose  of  effecting  a  settlement  and  that  his  duties  called 
for  by  the  contract  were  taken  over  by  another.  Various 
other  witnesses  were  called  on  this  point  but  we  do  not  con- 
sider it  necessary  to  resolve  the  conflict  because  under  the 


RODGER  V.  HAGER,  JAN.  25,  1915.  449 

express  terms  of  the  contract  plaintiff  would  have  been  en- 
titled to  no  more  than  his  salary  (which,  as  we  have  seen,  he 
received)  for  the  three  months  in  question  even  had  he  been 

present  the  whole  time.  As  already  quoted,  the  contract 
provides  that  "he  shall  have  no  title  to  any  interest  in  the 
earnings  of  said  agency  unless  acting  as  manager  for  a  full 
dividend  period."  This  period  is  elsewhere  fixed  by  the 
contract  at  not  less  than  six  months  and,  as  plaintiff  does 
not  claim  to  have  rendered  services  for  more  than  three 
months,  it  is  clear  that  the  clause  last  quoted  applies,  and 
that  he  is  not  entitled  to  a  share  of  the  earnings.  Here 
again  the  provision  may  be  urged  as  rather  stringent;  but 
it  must  have  been  apparent  to  plaintiff  when  he  signed  the 
contract  and,  having  accepted  it,  no  court  can  relieve  him 
from  its  consequences. 

III. 

Attached  to  defendant's  answer  is  a  copy  of  a  bond  exe- 
cuted by  plaintiff  for  the  faithful  performance  of  his  duties, 
of  which  the  answer  alleges 

"that  it  was  the  intention  of  said  parties  at  the  time  of  making  and 
executing  said  Bond  that  same  should  be  a  joint  and  several  obliga- 
tion but  that  thru  inadvertence  ignorance  and  mistake  same  was 
made  joint  in  form;  and  defendant  prays  that  same  be  changed  and 
reformed  into,  and  enforced  as,  a  joint  and  several  obligation." 

The  answer  nowhere  specifies  whose  inadvertence,  ignor- 
ance and  mistake  were  responsible  for  the  phraseolgy  of 
the  bond.  But  plaintiff's  testimony  is  undisputed  that  the 
instrument  was  prepared  by  defendant  himself,  and  there 
is  no  evidence  from  which  we  could  find  that  there  was  a 
nfiutual  mistake  of  the  parties. 

The  law  on  this  point  is  that 

"the  instrument  sought  to  be  corrected  must  fail  to  express  the  real 
agreement  or  transaction  because  of  mistake  common  to  both  parties, 
or  because  of  mistake  on  one  side  and  fraud  or  inequitable  conduct 
on  the  other.  A  mere  misunderstanding  of  the  facts  is  not  sufficient 
ground  for  asking  reformation."* 

Clearly  then  the  evidence  here  does  not  furnish  grounds 
for  a  reformation  of  the  bond. 


'  34  Cyc,  907. 

14008  O.  W. 29 


450  I  EXTRATERRITORIAL  CASES. 

IV. 

The  answer  further  alleges  that  plaintiff  is  indebted  to 
defendant  in  a  certain  amount,  the  largest  item  being  one 
of  $351.29  which,  it  is  alleged, 

"constitutes  an  overpayment  made  by  way  of  bonus  to  the  plaintiff 
under  the  aforesaid  contract  of  employment,  for  the  period  between 
July  1  and  December  31,  1913,  the  dividend  for  that  period  having 
been  wrongfully  miscalculated  by  the  plaintiff." 

It  will  be  seen  that  this  relates  to  a  dividend  period 
antedating  those  in  controversy  in  the  present  suit.  More- 
over, a  payment  for  that  or  any  other  period  could  only 
have  been  made,  as  we  have  seen,  after  the  statement  of 
dividends  had  been  submitted  to  and  "approved"  by  defend- 
ant. In  view  of  the  very  liberal  advantage  which  this 
afforded  defendant  for  protecting  himself  against  any 
"overpayment"  due  to  "miscalculations"  by  plaintiff,  we  do 
not  think  he  can  now  be  heard  to  claim  a  refund  on  that 
ground.  When  defendant  or  his  attorney  in  fact  "ap- 
proved" the  payment  in  question,  (as  one  of  them  must 
have  done  under  the  terms  of  the  contract),  the  correctness 
of  the  payment  was  thereby  ratified  and  it  is  no  more 
subject  to  recall  than  is  the  salary  which  defendant  paid 
plaintiff  for  a  period  during  which,  according  to  the  former's 
claim,  he  rendered  little  or  no  service  and  therefore  re- 
ceived much  more  than  he  was  entitled  to.  In  other  words, 
the  approval  of  the  payment  for  the  dividend  period  of 
1913  constituted  a  settlement  between  the  parties.  Of 
course,  if  it  had  been  shown  that  such  settlement  was 
induced  by  plaintiff's  fraud  or  even  that  defendant  had  the 
right  to  rely  absolutely  upon  plaintiff's  figures  a  different 
question  might  arise.  But  nothing  of  that  nature  is  alleged 
and  the  contract,  as  we  have  seen,  vests  considerable  dis- 
cretion with  defendant  as  to  whether  he  shall  approve  a 
dividend.  Along  with  the  benefits  of  this  discretion  he 
must  carry  also  the  burdens  and  having  had  full  oppor- 
tunity to  exercise  it  intelligently,  it  seems  not  unreasonable 
to  consider  him  bound  by  his  act  of  approval. 

Finally  when  the  parties  terminated  their  relations  de- 
fendant prepared  and  plaintiff  executed  a  receipt  (Exhibit 


UNITED  STATES  V.  GRIMES,  JAN.  3  0,   1915.  451 

B)  for  an  amount  which  defendant  then  paid  him  and 
which  defendant  claims  was  in  full  for  all  services,  although 
he  says  it  was  in  excess  of  the  amount  actually  due.  In 
view  of  this  testimony  we  must  assume  that  defendant  in- 
tended this  settlement  as  a  waiver  of  all  claims  against 
plaintiff  for  the  parties  had  been  negotiating  toward  such 
a  settlement  during  the  greater  part  of  September.  It  is 
true  that  the  dividend  feature  was  not  included  in  the  re- 
ceipt as  finally  signed,  but  as  defendant  disclaimed  all  lia- 
bility by  reason  of  dividends  and  treated  the  settlement  as 
complete  from  his  standpoint,  we  think  it  only  fair  so  to 
consider  it  here. 

Much  the  same  may  be  said  as  to  the  remaining  item 
of  $31.50  of  which,  according  to  the  answer, 

"defendant  says  that  he  is  willing  that  his  said  claim  be  set  off 
against   the  plaintiff's    demand." 

There  is  one  item  relating  to  suit  cases  for  which  plaintiff 
does  admit  liability  but  it  is  not  covered  by  the  pleadings 
and,  as  they  stand,  could  not  be  allowed.  The  same  is  true 
as  regards  the  claim  for  telephone  bills  on  the  part  of  plain- 
tiff. We  cannot  go  outside  the  issues  raised  by  the  plead- 
ings. 

It  is  therefore  considered  and  adjudged  that  plaintiff  take 
nothing  by  his  bill  and  the  defendant  nothing  by  his  answer, 
and  that  neither  party  recover  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Peter  A.  Grimes. 

[Cause  No.  414;  filed  January  30,  1915.] 

SYLLABUS. 
(By  the  Court.) 

1.  ESCAPE:   Ingredients.     Under  the  Act  of  Congress  penalizing  the 

crime  of  escape  locality  is  not  an  ingredient  thereof. 

2.  Id.  :  Id.     Nor  is  physical  restraint  necessary  to  the  commission  of 

such  crime. 

3.  Id.  :  An  officer's  custody,  actual  or  constructive,  of  a  prisoner  con- 

tinues until  the  latter  is  delivered  to  some  other  proper  author- 
ity and  the  relation  is  not  changed,  so  long  as  the  parties 
remain  together,  by  a  mere  collusive  arrangement  between  them. 


452  I  EXTRATERRITORIAL  CASES. 

4.  Id.  :  Penalty.  An  habitual  offender  who  conspires  with  his  keeper 
to  escape  from  custody  by  impersonating  another  deserves  the 
maximum  penalty. 

F.  E.  Hinckley,  Esq.,  U.  S.  Dist.  Atty.,  for  the  prosecution. 
James  B.  Davies,  Esq.,  for  the  defense. 

LOBINGIER,  J.: 

The  information  charges  that  the  accused 

"within  the  jurisdiction  of  said  court,  to  wit  on  board  the  United 
States  Army  Transport  Sheridan,  at  or  near  the  port  of  Nagasaki, 
Japan,  on  May  20,  1914,  being  then  and  there,  by  said  United  States 
Court  for  China,  for  the  crime  of  forgery,  under  conviction,  judg- 
ment, sentence  and  commitment  to  serve  imprisonment  of  three  years, 
with  useful  labor,  and  costs  of  prosecution,  and  being  then  and  there 
in  course  of  transfer  to  a  prison  in  the  United  States  continuing  un- 
der said  conviction,  judgment,  sentence  and  commitment,  and  before 
the  time  had  expired  for  which  he  had  been  so  convicted,  adjudged, 
sentenced  and  committed,  wilfully  and  unlawfully  did  escape :  Against 
the  laws  of  the  United  States." 

No  question  of  jurisdiction  is  raised  here,  the  defendant 
waiving-,  by  his  plea  of  not  guilty,  jurisdiction  of  his  person, 
and  accepting  as  to  jurisdiction  of  the  subject  matter  the 
doctrine  announced  by  this  Court  in  a  previous  opinion  ^ 
which  is  now  made  a  part  hereof.  The  citizenship  of  de- 
fendant is  likewise  undisputed. 

The  only  testimony  as  to  the  facts  constituting  the  crime 
is  that  of  the  defendant  and  his  keeper,  whose  conviction 
is  recorded  in  the  cause  last  cited.  From  this  it  appears 
that  the  former  left  Shanghai  in  the  latter's  custody  on 
May  16  to  connect  at  Nagasaki  with  the  transport  which 
was  to  convey  the  prisoner  to  his  new  place  of  incarceration. 
Arriving  at  Nagasaki  on  the  evening  of  the  17th,  three 
days  in  advance  of  the  transport,  the  two  occupied  the 
same  room  and  were  under  the  observation,  if  not  sur- 
veillance, of  the  Japanese  police.  The  two  visited  saloons 
together,  and  defendant  says  that  Kilgore,  the  keeper,  told 
him  that  it  was  a  shame  that  he  had  to  go  across  to  San 
Quentin.  The  idea  of  substituting  another  in  place  of  the 
prisoner  was  then  suggested,  Kilgore  says,  by  way  of  a 
joke.     The  plan  was  followed  up  and  on  the  evening  of  the 


^  U.  S.  v.  Kilgore  (on  demurrer),  ante,  p.  395. 


UNITED  STATES  V.  GRIMES,  JAN.  3  0,  1915.      453 

20th  Kilgore,  the  defendant  and  a  third  party  who  had 
agreed  to  act  as  the  substitute,  took  a  sampan  from  the 
wharf  to  the  transport.  The  prisoner  boarded  it  first, 
followed  immediately  by  the  substitute  and  the  keeper  last. 
Leaving  the  other  two  on  a  lower  deck,  Kilgore  went  to  the 
commanding  officer  of  the  ship,  produced  his  commitment 
and  stated  that  the  prisoner  was  waiting  below.  The  com- 
manding officer  then  summoned  the  officer  of  the  deck  and 
directed  him  to  take  charge  of  the  prisoner.  Said  officer 
then  accompanied  Kilgore  to  the  place  where  the  other  two 
had  remained  and  asked  which  was  the  prisoner,  whereupon, 
according  to  Kilgore,  defendant  pointed  to  the  substitute, 
while,  according  to  Grimes,  Kilgore  was  the  one  so  to 
indicate.  The  officer  then  gave  Kilgore  a  receipt  for  Grimes, 
but  took  the  substitute  into  his  custody,  whereupon  Grimes 
and  Kilgore  left  the  ship  and  started  the  same  evening  for 
Yokohama. 

II. 

The  defense  raises  a  single  question  of  fact,  viz.,  the 
precise  place  where  the  escape  occurred ;  counsel  contending 
that  by  collusion  between  the  accused  and  his  keeper  the 
former  in  fact  escaped  before  boarding  the  transport  not- 
withstanding he  actually  accompanied  the  latter  thereto. 

It  may  first  be  observed  that  this  contention,  even  if 
established,  would  not  necessarily  profit  the  defendant.  A 
similar  claim  was  thus  disposed  of  in  a  well-reasoned  case:^ 

"The  indictment  alleges  that  Jenks  escaped  *  *  *  from  the 
penitentiary,  and  it  is  said  that  the  proof  does  not  sustain  the  allega- 
tion. The  evidence  shows  that  Jenks  was  not,  at  the  time  of  his 
escape,  confined  in  the  penitentiary,  nor  did  he  escape  therefrom,  but 
he  escaped  while  outside  of  the  penitentiary  and  outside  of  the  stock- 
ade where  the  other  convicts  were  confined.  It  is  contended  that  this 
is  a  fatal  variance  but  we  are  of  opinion  that  this  contention  cannot  be 
sustained.  If  the  offense  was  one  of  a  local  character,  so  that  the  house 
or  place  in  which  it  was  committed  must  be  alleged  and  proved,  then 
the  description  of  such  house  or  place  would  be  material  and  should 
be  proved  as  alleged.  *  *  *  g^^  ^]^g  locality  does  not,  under 
our  statute,  enter  into  the  substance  of  the  crime  of  escape.  It  is  a 
violation  of  the  statute  for  a  convict  to  escape  at  any  place — whether 
from  the  penitentiary  or  not.  To  determine  the  venue  and  jurisdic- 
tion over  the  offense,  it  was  necessary  to  allege  and  prove  the  county 


Jenks  V.  State,  63  Ark.  312,  39  S.  W.  Rep.  361. 


454  I  EXTRATERRITORIAL  CASES. 

in  which  the  crime  was  committed  and  that  was  done  in  this  case. 
Beyond  this,  the  reference  to  the  penitentiary  or  place  from  which 
the  convict  escaped  was  wholly  unnecessary  and  immaterial  and 
may,  therefore,  be  rejected  as  surplusage.  It  is  not  necessary  to  show 
that  such  an  offense  was  committed  in  the  place  alleged,  if  it  be 
shown  to  have  been  committed  in  some  other  place  in  the  same 
county."  * 

It  may  be  added  that  "the  locality  does  not,"  under  the 
statute  invoked  by  the  district  attorney,  any  more  than 
under  the  Arkansas  statute,  "enter  into  the  substance  of 
the  crime  of  escape." 

III. 

But  we  are  unable  to  agree  with  counsel  that  defendant's 
escape  took  place  prior  to  his  boarding  the  transport.  It 
is  conceded  that  he  left  the  American  Prison  at  Shanghai 
on  May  16,  1914,  in  the  custody  of  one  Kilgore,  his  keeper, 
who  held  him  by  virtue  of  a  warrant  of  commitment  from 
this  Court.  Such  custody  thus  originated  by  judicial  au- 
thority and  continued  until  the  prisoner  was  delivered  to 
one  duly  authorized  to  receive  him  *  who  in  this  case  was 
the  commanding  officer  of  the  transport.  And  such  custody 
could  not  be  terminated  by  a  mere  collusive  arrangement 
between  keeper  and  prisoner.  To  permit  that  would  be 
to  enable  them  to  take  advantage  of  their  own  wrong  and 
to  legalize  a  criminal  conspiracy  to  defeat  the  due  course  of 
justice.  So  long  as  the  accused  remained  in  Kilgore's  com- 
pany with  the  commitment  he  must  be  considered  as  having 
been  also  in  the  latter's  custody;  for  there  was  no  other 
reason  for  their  being  together  and  neither  of  them  had 
power  to  change  the  relation  of  custody  to  one  of  part- 
nership. 

Indeed  we  doubt  if  the  testimony,  properly  weighed, 
shows  that  they  themselves  treated  the  custody  as  ter- 
minated before  they  reached  the  transport.  It  is  true 
that  Kilgore  now  says  that  the  defendant  went  there  with 
him  but  that  he  "did  not  take  defendant."     In  his  letter  of 

'Id.,  citing  Com.  v.  Lavery,  101  Mass.  207;  Com.  v.  Tolliver,  8 
Gray,  386;  3  Greenl.  Ev.  (15th  ed.),  sec.  12;  2  Russ.  Crimes  (8th  Am. 
ed.),  800;  1  Phil.  Ev.  (4th  Am.  Ed.)  890. 

'  Murray  v.  State,  25  Fla.  528,  6  So.  Rep.  498.  Cf.  Com.  v.  Morihan, 
4   Allen    (Mass.")    587. 


UNITED  STATES  V.  GRIMES,  JAN.  30,  1915.      455 

June  19  (Ex.  A),  however,  written  while  the  affair  must 
have  been  still  fresh  in  his  mind  he  said :  "/  took  Grimes  to 
the  transpo7't  in  Nagasaki.  There  I  helped  him  to  escape." 
Moreover  defendant  seems  to  have  considered  that  it  was 
necessary  for  him  to  go  on  board  for  he  testifies  that  he 
told  Kilgore  "on  the  transport  they  might  ask  me,  What 
officer  (are  you)  ?"  Defendant  also  says  that  he  gave  and 
kept  his  word  to  Kilgore  not  to  escape  and  this  alone  would 
preclude  the  idea  that  he  did  escape  before  boarding  the 
transport. 

Much  was  said  in  argument  to  the  effect  that  Kilgore 
ceased  to  exercise  restraint  over  his  prisoner  after  their 
plot  was  hatched.  Kilgore  himself  testifies  on  this  point 
as  follows: 

Q.  Did  you  consider  Mr.  Grimes  as  a  prisoner  when  you  took 
him  on  board  the  transport  Sheridan? 

A.  I  can  hardly  answer  that  question. 

Q.  Were  you  exercising  any  restraint  upon  the  liberty  of  Mr. 
Grimes  when  you  took  him  on  board  the  transport? 

A.  Yes. 

Q.  You  were  exercising  restraint  over  the  liberty  of  Mr.  Grimes? 

A.  I  do  not  think  there  was  any  discussion  about  it  at  all. 

Q.  Suppose  instead  of  going  aboard  the  Sheridan  he  had  chosen 
to  take  the  train  to  Yokohama,  would  you  have  interfered  with  him 
in  any  way? 

A.  I  think  so. 

Q.  Why? 

A.  I  could  not  give  any  reason. 

*  *  ^  ^  ^  -^  He 

Q.  Did  your  means  of  restraint  differ  in  any  way  from  the  means 
of  restraint  you  had  used  in  Nagasaki  previous  to  the  sampan 
journey? 

A.  Well  the  only  restraint  I  used  at  all  on  Grimes  was  his  word — 
and  it  was  the  same  then  as  at  any  other  time." 

Thus  while  the  prisoner  seems  to  have  been  allowed 
altogether  too  much  freedom  from  the  start,  it  does  not 
appear  to  have  increased  prior  to  boarding  the  transport. 
Both  men  seemed  to  consider  that  their  conspiracy  would 
not  become  effective  until  they  had  gone  thru  the  form  of 
surrendering  a  prisoner  to  the  transport  officer. 

Nor  would  mere  lack  of  restraint  prevent  his  committing 
the  crime  of  escape.  For  the  purposes  of  that  offense  a 
prisoner  "is  under  arrest  if  he  is  ordered  to  be  subject  to 


456  I  EXTRATERRITORIAL  CASES. 

arrest"  ^  and  there  may  be  either  "actual  confinement  or 
the  present  means  of  enforcing  it."  " 

"The  appellant,  Ed.  Jenks,  was  a  convict  serving  a  term  in  the 
penitentiary  for  the  crime  of  burglary  and  larceny.  While  thus  serv- 
ing as  a  convict  he  was  made  a  'trusty'  by  the  commissioners  of  the 
penitentiary.  He  was  afterwards  sent  with  other  convicts  from  the 
walls  of  the  penitentiary  to  a  camp  or  stockade  near  the  state  insane 
asylum,  upon  which  the  convicts  were  at  work.  After  being  made 
a  'trusty,'  he  was  not  required  to  eat  or  sleep  with  other  convicts, 
called  'linemen',  but  ate  at  a  table  prepared  for  'trusties,'  and  slept 
in  a  house  on  the  outside  of  the  stockade  in  which  the  'linemen'  were 
confined.  He  was  not  under  guard,  and  was  allowed  to  go  at  large 
occasionally,  within  certain  limits,  but,  in  common  with  other  trusties, 
was  required  to  report  to  the  warden,  perform  certain  duties,  and  to 
obey  prison  rules.  While  at  large  on  one  occasion  he  left  the  county 
and  state,  and  did  not  return  until  brought  back.  The  grand  jury  re- 
turned an  indictment  against  him  for  the  crime  of  escape.  *  *  * 
Upon  a  trial  under  this  indictment  the  defendant  was  convicted  and 
sentenced  for  the  crime  of  escape." ' 

And  the  Appellate  Court  upheld  the  conviction,  saying: 

"Altho  Jenks  had  been  made  a  trusty,  and  was  not  confined  in  the 
walls  of  the  penitentiary,  nor  kept  under  guard,  yet  he  was  required 
to  remain  within  certain  bounds,  to  do  work,  and  to  obey  prison  rules. 
He  was,  in  law,  still  a  convict  in  custody,  serving  his  term  of  impris- 
onment. When,  therefore,  he  fled  from  the  county  and  state,  he 
committed  the  crime  of  escape,  for  the  punishment  of  which  the 
statute  above  referred  to  was  passed".' 

So,  in  the  case  at  bar,  when  the  accused  boarded  the 
transport  followed  immediately  by  his  keeper  the  former 
was  still,  in  legal  contemplation,  in  the  latter's  custody 
and  his  departure  from  the  transport,  after  the  commitment 
papers  had  passed  to  a  new  custodian,  constituted  an  escape. 

IV. 

The  statute  upon  which  this  prosecution  is  based,  and 
which  is  in  force  here  by  virtue  of  a  general  extension 
of  the  acts  of  Congress, **  provides : 

'Wharton,  Criminal  Law   (9th  ed.),  sec.  1678. 
'  Spring  V.   Dahlman,  34  Neb.,  692,  52  N.  W.   Rep.,  567. 
'Jenks  V.   State,  63  Ark.,  312,  39   S.  W.   Rep.,  361. 
*  Id.,  citing  Riley  v.  State,  16  Conn.,  47;  1  Russ.  Crimes   (8th  Am. 
ed.),  p.  416;  2  Whart.  Cr.  Law,  sec.  1678. 

"  U.  S.  Rev.  Stats.,  sec.  4085;  Biddle  v.  U.  S.,  ante,  p.  120. 


PAGET  V.  CANTON  COLLEGE,  MAR.  15,  1915.  457 

"If  any  male  or  female  criminal  shall  run  away  before  the  time 
shall  be  fully  expired  for  which  such  criminal  shall  be  convicted  and 
adjudged,  the  time  of  service  and  labor  of  such  criminal  shall  be 
extended  *  *  *  not  exceeding  one  year  for  every  time  such 
criminal  shall  run  away". " 

The  accused  is  a  prior  offender  ^^  and  to  his  previous 
record  must  now  be  added  this  crime  of  escape  and  his 
conviction  and  sentence  by  a  Japanese  Court  for  still  another 
offense  after  he  had  escaped.  And  in  the  conspiracy  which 
resulted  in  the  escape  we  do  not  believe  that  he  was  the 
passive  instrument  he  now  claims  to  have  been.  He  is 
fourteen  years  older  than  his  keeper  (who  is  now  but 
twenty-two)  and  so  much  more  experienced  in  crime  that 
it  would  be  most  unnatural  if  he  were  not  the  chief  mover 
in  the  affair.  Nothing  short  of  the  maximum  penalty  seems 
to  meet  the  aggravating  circumstances  which  have  marked 
the  defendant's  course. 

He  is  accordingly  sentenced  to  imprisonment  for  one  year 
to  be  served,  after  completing  the  sentence  in  Criminal 
cause  No.  87,  in  the  Prison  for  American  convicts  in 
China  at  Shanghai,  unless  and  until  due  provision  is  made 
for  his  lawful  transfer  to  some  other  Prison;  and  to  pay 
the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Charles  S.  Paget,  Plaintiff,  v.  Canton  Christian  College, 
a  Corporation,  Defendant. 

[Cause  No.  412;   filed  March   15,   1915.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTHACTS.  Courts  will  not  make  contracts  for  parties;  in  the 
absence  of  mistake,  fraud  or  other  well  recognized  grounds, 
the  former  will  merely  construe  and  apply  the  terms  and  con- 
ditions accepted  by  the  latter. 

^°  District  of  Columbia  Comp.  Stats.,  ch.  XVI,  sec.  155  continuing 
in  force  a  Maryland  Act  of  1793.  There  was  also  a  common  law 
offense  of  escape.     See  Harris,  Criminal  Law,  68. 

"  See  U.  S.  V.  Grimes,  ante,  p.  305. 


458  I  EXTRATERRITORIAL  CASES. 

2.  Id.:  Novation.     A  contract  is  displaced  and  superseded,  even  with- 

out an  express  provision  to  that  effect,  by  a  subsequent  agree- 
ment on  the  same  subject  inconsistent  with  the  first. 

3.  Id.  :  Damages.     Not  every  departure  from  the  terms  of  a  contract  is 

actionable.  There  must  be  actual  injury  or  the  case  is  one  of 
dainrium  absque  injuria. 

4.  Id.:   Id.:   Where  a  contract  merely  gives  one  party  the  option  to 

employ  the  other,  and  the  latter  the  option  to  accept  employment, 
without  imposing  a  specific  obligation  upon  either,  a  notice 
by  the  former  to  terminate  the  arrangement  before  any  service 
has  been  rendered  by  the  latter  is  at  most  injuria  sine  damno. 

5.  Id. :    Id.:    Contingent   liability   for    services    rendered    one    of   the 

parties  to  a  contract  by  a  stranger  before  the  same  was  entered 
into,  is  not  a  proper  item  of  damage  for  the  breach  of  said  con- 
tract especially  where  such  services  have  not  been  paid  for 
and  the  evidence  as  to  their  value  is  conflicting  and  unsatis- 
factory. 

Messrs.  C.  G.  Alahaste7\  Barrister,  and  D.  J.  Lewis,  Soli- 
citor, for  plaintiff. 

H.  L.  Dennys,  Esq.,  Solicitor,  for  defendant. 

LOBINGIER,  J.: 

This  is  an  action  for  damages  from  the  alleged  wrongful 
termination  of  a  contract  for  the  employment  by  defendant 
of  plaintiff  as  an  architect.  The  original  negotiations  for 
such  employment  began  as  early  as  March,  1912  (Exhibits 
"A"  &  "B"),  and  as  a  result  thereof  plaintiff  was,  on 
November  1,  1912  (Ex.  "E")  appointed  "resident  Architect 
and  Engineer"  for  defendant  upon  terms  embodied  in  a 
communication  (Ex.  "C")  from  defendant's  president,  in- 
corporating, by  reference,  various  rules  and  regulation's 
(Exhibits  "CI"  to  "C3")  previously  adopted  by  defendant 
for  its  employees  in  general.  More  than  a  page  of  the 
said  communication  (sec,  4)  was  devoted  to  prescribing 
plaintiff's  rather  extensive  duties.  It  was  provided  that 
(sec.  3)  "the  first  term  of  service  is  to  be  three  years, 
salary  and  allowance  to  be  on  the  basis  of  an  unmarried 
man"  and  that  (sec.  14)  "termination  of  relationship  shall 
be  only  on  six  months'  notice  by  either  party."  The  annual 
compensation  including  various  privileges  was  estimated 
at  G.  $1,000. 

It  appears,  however,  that  the  contract  thus  evidenced 
failed  to  prove  satisfactory,  in  all  respects,  to  either  party. 


PAGET  V.  CANTON  COLLEGE,  MAR.  15,  1915.  459 

On  plaintiff's  part  the  amount  of  service  required  of  him 
was,  he  testifies  (p.  4),  nearly  twice  what  he  expected  and 
as  he  was  engaged  in  various  building  contracts  on  his 
own  account,  this  appears  to  have  constituted  a  substantial 
objection.  On  defendant's  part,  there  were  complaints  (pp. 
11,  13)  as  to  the  character  of  the  supervision  exercised, 
especially  during  plaintiff's  absence  in  America.  Into  the 
details  of  these  complaints  we  need  not  enter  and  it  is  only 
necessary  to  mention  them  at  this  time  as  explaining  the 
attitude  of  both  parties  toward  the  original  contract.  By 
December,  1913,  this  attitude  of  mutual  dissatisfaction  had 
so  increased  that  plaintiff  testifies  (p.  25)  "in  my  opinion, 
it  was  far  better  to  terminate  that  arrangement  if  they 
so  desired  and  to  enter  into  new  relations."  He  accord- 
ingly accepted  the  following  (Ex.  H.)  : 

"Mr.  C.  S.  Paget, 
Shameen,   Canton. 

Dear  Mr.  Paget: 

The  council  of  the  Canton  Christian  College  yesterday  discussed 
your  application  for  permission  to  build  a  residence  on  the  college 
campus.  Ijn  place  of  the  existing  agreement  entered  into  November 
1,  1912,  between  the  college  and  Purnell  &  Paget,  the  council  would 
approve  of  the  terms  herewith  subjoined.  If  they  are  satisfactory 
to   you  please  sign  the  enclosed  duplicate   and   return   to  me. 

The  trustees  of  the  college  cannot  permit  private  individuals  not 
in  connection  with  the  college  or  similar  work  to  build  residences 
on  the  campus.  The  college  is,  however,  willing  to  grant  this  com- 
munity privilege  to  you  in  exchange  for  your  services  as  advisory 
architect  and  engineer  under  certain  conditions.  These  conditions 
you  will  understand  are  necessary  on  account  of  the  peculiar  nature 
of  the  college's  work. 

(a)  The  site  used  to  be  selected  by  the  college  council.  The  plans 
and  specifications  to  be  approved  by  the  college  council  and  access 
given  to  accounts  so  as  to  assure  the  council  of  the  exact  cost. 
The  maximum  redemption  price  if  the  college  ever  takes  over  the 
house  shall  be  $8,000  U.  S.  G. 

(6)  No  land  rent  shall  be  charged.  In  case  taxes  shall  be  levied 
Mr.   Paget  shall  pay  the  share  proportionate  to  his   site. 

(c)  In  return  for  sharing  the  community  privileges  Mr.  Paget 
promises  to  give  the  college  without  further  compensation  the  best 
services  he  can  render  as  advisory  architect  and  engineer,  subject 
to  call  to  attend  at  least  one  meeting  each  week  of  the  building 
committee.  In  case  Mr.  Paget's  regular  service  as  an  architect,  or 
the  service  of  his  office  staff  are  used  by  the  college,  payment  shall 


460  I  EXTRATERRITORIAL  CASES. 

be  made  by  the  college  according  to  a  rate  determined  before  each 
transaction. 

(d)  For  all  community  utilities  made  use  of  by  him  Mr.  Paget 
will  pay  upon  the  basis  of  actual  total  cost. 

(e)  He  agi'ees  to  conform  to  the  community  regulations  as  from 
time  to  time  established,  and  as  a  member  of  the  community  to  take 
part  in  developing  it  and  protecting  its  interests. 

(/)  The  college  council  must  be  free  at  any  time  after  January 
1,  1919,  provided  three  years'  notice  has  been  given  in  writing,  to 
take  over  the  property  (except  movable  furnishings)  at  a  cost  to  be 
determined  as  follows: 

The  house  must  be  kept  in   good   repair  by  owner. 

Damage  resulting  from  faulty  construction  must  have  been  fully 
made  good  by  owner. 

The  sum  paid  by  the  college  shall  be  its  original  cost,  (see  (a) 
above),  less  1  per  cent  for  each  year  it  has  stood  between  December 
31,  1913,  and  December  31,  1938,  and  less  2  per  cent  per  annum 
thereafter. 

Should  the  interests  of  the  college  require  it,  the  alloted  site  may 
be  any  time  reclaimed  provided  the  college  allot  another  site  and 
provide  funds  to  replace  the  house  by  a  house  in  value  equal  to  the 
one  thus  taken  over. 

(g)  So  long  as  Mr.  Paget  shall  render  hearty  service  as  adviser 
to  the  college  so  as  to  convince  the  council  of  his  value  to  the  in- 
stitution, the  trustees  authorize  the  Council  to  extend  the  community 
privilege  to  him  as  a  resident. 

(h)  If  Mr.  Paget  desires  to  vacate,  subrent,  sublease,  or  sale  of 
his  house  can  be  effected  only  to  person  or  persons  approved  by  the 
college,  who  shall  be  bound  by  all  regulations  of  the  community  and 
shall  pay  to  the  college  annually  such  sums  for  land  rental  and 
community  rates  as  shall  be  from  time  to  time  fixed  by  the  council. 

If  you  become  a  resident  of  the  community  we  shall  all  give  you 
and   Mrs.   Paget  a  cordial  welcome,   and  hope   that  the  relationship 
shall  always  be  mutually  enjoyable  and  helpful. 
Yours  faithfully, 

(Sgd.)     C.  K.  Edmunds, 

Vice  President. 

I  agree  to  the  terms  above  stated.  The  agreement  to  be  put  in 
force. 

Signed:   Jan.   1st,   1914. 

(Sgd.)     C.  S.  Paget." 

Plaintiff,  indeed,  says  (p.  35)  that  he  regarded  this  as 
"passing  from  one  to  another,"  that  his  "idea  never  con- 
templated that  the  conditions  obtaining  at  that  time  should 
absolutely  cease"  and  that  (pp.  39-40)  he  "tho't  the  old 
agreement  so  far  as  privileges  were  concerned  would  con- 
tinue in   force,  and  that  the  second  contract  altered  my 


PAGET  V.  CANTON  COLLEGE,  MAR.  15,  1915.  461 

relationship  only  so  far  as  services  were  concerned."  But 
his  counsel  in  argument  conceded  that  "the  old  contract 
was  cancelled  by  mutual  consent,"  and  such  we  think  is  the 
only  conclusion  to  be  drawn  from  the  conduct  of  the  parties 
and  the  language  employed.  For  Ex.  "H"  recites  at  the 
outset  that  it  is  offered  "in  place  of  the  existing  agreement 
entered  into  November  1,  1912."  It  contains  no  other 
allusion  to  the  original  contract,  incorporates,  neither  by 
reference  nor  otherwise,  any  of  the  former's  terms  or  con- 
ditions, and  its  provisions  are  in  fact  so  entirely  different 
as  to  render  the  second  agreement  inconsistent  with  the 
old.  Instead  of  continuing  as  "resident  Architect  and 
Engineer"  with  a  fixed  cash  salary,  travel  and  vacation 
allowance,  quarters,  medical  attendance,  etc.,  plaintiff  be- 
came, under  the  second  contract,  merely  "advisory  architect 
and  engineer,"  "without  further  compensation"  than  the 
privilege  of  erecting  a  residence  on  defendant's  campus 
under  certain  conditions  to  be  discussed  later  on.  It  was, 
however,  provided  as  has  been  seen  (paragraph  c),  that 
"in  case  Mr.  Paget's  regular  service  as  an  architect  or  the 
service  of  his  ofRce  staff  are  used  by  the  college,  payment 
shall  be  made  by  the  college  according  to  a  rate  determined 
before  each  transaction." 

The  effect  of  substituting  such  an  agreement  is  well 
settled. 

"One  written  contract  complete  in  itself  will  be  conclusively  pre- 
sumed to  supersede  another  one  made  prior  thereto  in  relation  to 
the  same  subject-matter.  If  agreements  be  made  between  the  same 
parties  concerning  the  same  matter,  and  the  terms  of  the  later 
are  inconsistent  with  those  of  the  former  so  that  they  cannot  subsist 
together,  the  later  will  be  construed  to  discharge  the  former."^ 

The  major  portion  of  the  new  contract,  however,  deals, 
as  will  be  seen,  with  plaintiff's  residential  privilege  and 
the  terms  upon  which  it  was  to  be  enjoyed.  The  new 
contract,  while  dated  December  19,  1913,  was  signed  by 
plaintiff  on  December  24,  1913,  and  on  behalf  of  defendant 
on  December  29,  1913  (p.  98),  but  by  its  terms  was  to 
take  effect  on  January  1,  1914.     It  appears,  however,  that 

^  9  Cyc.  595,  citing  many  authorities.  Cf .  Anson  on  Contra<rts 
(Huffutt's  ed.)    sec.   353. 


462  I  EXTRATERRITORIAL  CASES. 

subsequent  to  its  execution  by  plaintiff  an  incident  occurred 
(p.  83)  between  himself  and  one  of  defendant's  represen- 
tatives which  caused  the  latter  to  make  an  unfavorable 
report,  and  on  January  2d,  one  day  after  the  contract  took 
effect  according  to  its  terms,  the  following  letter  (Ex.  "I") 
was  written  on  defendant's  behalf  and  received  by  plaintiff : 

"Messrs.  PuRNELL  &  Paget, 
Shameen,  Canton. 

Gentlemen  : 

We  regret  that  since  ratifying  your  appointment,  we  have  found 
that  we  cannot  give  you  that  measure  of  confidence  and  authority 
which  you  expect  in  serving  us  as  advisory  architect  and  engineer. 
Because  of  this  and  because  of  your  attitude  of  mind  as  shown  in 
recent  conferences,  it  is  clear  that  a  continuance  of  this  mutually 
unsatisfactory  relationship  can  only  lead  to  continued  friction  and 
inefficiency  in  the  work  of  our  building  committee.  The  council  has 
therefore  decided  that  it  will  be  better  to  terminate  your  professional 
connection  with  the  College, 

Under  these  circumstances  it  is  impossible  to  carry  out  the  plan 
to  erect  a  residence  on  our  premises. 

We  shall  ourselves  undertake  to  complete  such  unfinished  work 
as  has  till  now  been  committed  to  you. 

The  council  will  be  glad  to  employ  your  services  in  the  future  if 
circumstances  permit.     We  trust  the  embarrassment  in  which   both 
you  and  we  find  ourselves  will  not  affect  our  personal  relationship. 
Very  truly  yours, 

(Sgd.)     C.  K.  Edmunds. 

President." 

Various  correspondence  passed  between  the  parties  sub- 
sequent to  this  letter  and  negotiations  between  them  con- 
tinued almost  a  year,  but,  no  settlement  having  been  reached, 
plaintiff  on  December  21,  1914,  commended  this  action  by 
filing  his  petition  in  which  he  claims  damages  itemized  as 
follows : 

Emoluments  in  lieu  of  six  months'  notice $500.00 

Expenses  bringing  designer  to  Canton 115.00 

Bonus  at  end  of  three  years 275.00 

Damages   sustained   by   reason   of  loss   of   residence   site, 

January  1,  1914,  to  January  1,  1919 258.00 

Loss  sustained  by  cancellation  of  contract  for  building  of 

residence  500.00 

Total   : $1,648.00 


PAGET  V.  CANTON  COLLEGE,  MAR.   15,   1915.  463 

II. 

Taking  these  items  up  seriatim,  the  first  question  pre- 
sented is  whether  plaintiff  was  entitled  to  six  months',  or 
other,  notice  under  the  contract  as  it  now  stands.  His 
counsel  contend  that,  even  tho  the  original  contract  be 
treated  as  abrogated,  he  is,  nevertheless,  entitled  to  reason- 
able notice  of  discharge,-  and  that  the  previous  arrange- 
ment and  course  of  dealing  between  the  parties  must  be 
resorted  to  in  order  to  determine  what  would  be  reasonable 
notice  under  the  circumstances.  To  this  defendant  replies 
that  any  implied  requirement  of  such  notice  is  waived  by 
clause  (g)  of  the  contract  (Ex.  "H")  by  which  its  priv- 
ileges continued  only  "so  long  as  Mr.  Paget  shall  render 
hearty  service  as  adviser"  and  it  is  claimed  that  such 
service  had  already  ceased  when  the  notice  of  termination 
was  served.  But  it  is  also  cont°.nded  that  the  terms  of 
the  second  contract  are  such  that  plaintiff  could  have  suf- 
fered no  actual  damage  from  its  termination  and  hence 
that  there  could  be  no  recovery  for  the  first  item,  even  if 
such  termination  were  premature.  If  the  latter  conten- 
tion be  sound  the  former  need  not  further  be  considered. 

As  we  have  seen,  defendant  does  not  undertake,  by  the 
second  contract,  to  provide  plaintiff  with  any  specific  em- 
ployment or  compensation.  He  is  to  act  as  "advisory  arch- 
itect and  engineer"  for  the  residential  privilege  and  is 
to  be  paid  otherwise  only  "in  case"  his  "regular  service  as 
an  Architect"  is  "used."  Plaintiff's  counsel  contends  that 
this  clause  involved  an  implied  undertaking  to  provide 
plaintiff  with  a  reasonable  amount  of  work  so  long  as  the 
employment  lasted  and  in  support  of  such  contention 
counsel,  with  commendable  evidence  of  industry,  presents 
what  is  claimed  to  be  a  case  "on  all  fours". ^  After  scru- 
tinizing this  decision,  however,  we  note  what  seem  to  us 


*  Citing  African  Association,  Ltd.,  vs.  Allen,  L.  J.  Rep.  (1910), 
N.  S.,  vol.  79,  p.  259  (K.  B.  Div.)  ;  Chitty  on  Contracts  (15th  ed.), 
pp.  529,  which  reads  as  follows:  "Where  the  contract  of  hiring  does 
not  contain  any  stipulation  as  to  notice,  the  servant  can  only  be 
dismissed  on  having  reasonable  notice,  or  the  customary  notice,  if 
there  be  a  custom  applicable  to  the  particular  case." 

'  Devonald  v.  Rosser,  L.  R.  (K.  B.  Div.  1906),  vol.  2,  p.  728. 


464  I  EXTRATERRITORIAL  CASES. 

material  differences  in  the  facts;  for  there  plaintiff  had 
been  employed  by  defendant  for  thirteen  years  under  con- 
ditions which  included  the  following : 

"By  rule  1,  'No  person  regularly  employed  shall  quit  or  be  dis- 
charged from  these  works  without  giving  or  receiving  twenty-eight 
days'  notice  in  writing,  such  notice  to  be  given  on  the  first  Monday 
of  any  calendar  month  before  12  o'clock  at  noon.'  By  rule  11,  'Every 
workman  in  the  various  departments  of  the  works  will  when  required 
by  the  manager  or  agent  perform  such  duties  as  may  be  deemed 
necessary  in  case  of  emergency  other  than  the  special  work  he  may 
be  engaged  in.'  The  plaintiff  was  paid  by  piece  work  at  so  much 
per  box  of  112  tinplates."  • 

Under  these  long  continued  circumstances  and  by  virtue 
of  these  material  restrictions  upon  plaintiff's  right  to  accept 
other  employment,  the  Court  might  well  find  an  implied 
contract  and  a  measure  of  damages  in  the  average  amount 
of  plaintiff's  earnings  previous  to  his  discharge.  But  we 
find  nothing  analogous  to  this  in  the  contract  before  us. 
Plaintiff  had  performed  no  work  whatever  under  the  new 
contract  which  in  fact  had  been  in  force  but  one  day  when 
the  notice  complained  of  was  given.  Nor  was  he  required, 
as  in  the  case  cited,  either  to  give  notice  of  an  intention  to 
quit  the  employment  or  (using  the  Court's  language  in  that 
case)  to  "be  at  the  beck  and  call  of  the  master  whenever 
required."  There  is  nothing  in  this  contract  (Ex.  "H") 
which  requires  plaintiff  to  render  any  service  at  all  except 
as  "Advisory  Architect  and  Engineer,"  which  is  to  be 
"without  further  compensation"  than  the  residential  priv- 
ilege. Besides  the  notice  of  January  2, 1914,  did  not  purport 
absolutely  to  terminate  such  service.  On  the  contrary  it 
announced  (Ex.  "I")  "The  council  will  be  glad  to  employ 
your  services  in  the  future  if  circumstances  permit." 

As  to  the  other  service,  there  is,  indeed,  a  provision  for 
compensation  "in  case"  it  is  rendered,  but  no  requirement, 
as  in  the  cited  authority,  which  binds  plaintiff  to  stand 
ready  to  perform  whatever  service  defendant  may  require. 
While,  therefore,  we  do  not  question  the  authority  of  that 
decision  as  regards  the  facts  there  presented,  we  are  unable 
to  find  it  applicable  to  this  case,  and  so  long  as  plaintiff 
was  entitled  to  no  specific  pecuniary  compensation  except 
for  services  actually  performed  for  the  defendant,  and  so 


PAGET  V.  CANTON  COLLEGE,  MAR.  15,  1915.  465 

long  as  the  acceptance  of  such  service  was  entirely  optional 
with  defendant,  we  are  unable  to  see  how  it  could  be 
found  that  plaintiff  was  necessarily  damaged  in  this  re- 
spect by  the  termination  of  the  contract.  For  defendant 
did  not  actually  agree  to  give  plaintiff  any  definite  amount 
of  employment;  it  only  agreed  to  pay  him  in  case  his 
services  were  "used."  It  may  be,  as  the  Court  observed 
in  the  case  cited,  that  "the  bargain  is  of  a  very  one-sided 
character,"  but  the  disparity  between  the  relative  position 
of  the  parties  was  not  at  all  such  as  existed  in  that  case; 
they  dealt  on  an  equal  footing  and  as  we  have  seen  plaintiff 
as  well  as  defendant  desired  to  substitute  the  new  arrange- 
ment for  the  old.  Now  it  is  elementary  that  the  Courts 
will  not  make  contracts  for  the  parties;  in  the  absence  of 
mistake,  fraud  or  other  well  recognized  grounds  they  will 
merely  construe  the  term's  and  conditions  which  the  parties 
have  agreed  upon,  and  there  is  no  claim  here  that  these 
terms  were  not  voluntarily  accepted  by  both.  We  cannot 
assume  that  plaintiff  would  have  received  any  pecuniary 
profit  under  this  contract,  even  if  the  notice  of  January 
2,  1914,  had  never  been  given,  because  we  cannot  presume 
either  that  defendant  would  necessarily  have  exercised  its 
privilege  to  "use"  plaintiff's  services  or  that  he  would 
necessarily  have  exercised  his  privilege  (for  we  have  seen 
that  there  was  no  obligation)  to  render  them.  Therefore, 
we  cannot  find  as  a  matter  of  law  that  he  suffered  the 
damages  claimed  in  the  first  item  by  reason  of  such  notice. 

III. 

The  next  item  of  damage  claimed,  it  will  be  seen,  is 
"expenses  bringing  designer  to  Canton,  $115."  The  new 
contract  (Ex.  "H")  says  nothing  about  a  designer.  De- 
fendant's communication  of  September  14,  1912  (Ex. 
"C"),  which  formed  part  of  the  original  contract,  did  re- 
quire (paragraph  7)  plaintiff  to 

"Maintain  and  pay  as  a  member  of  his  own  staff  a  qualified 
European  competent  to  handle  the  element  of  design  in  the  work 
undertaken  for  the  College  and  of  the  competency  of  such  designer 
the  Council  shall  be  the  final  judge." 

14008  O.  W. 30 


466  I  EXTRATERRITORIAL  CASES. 

There  is  considerable  testimony  as  to  the  plaintiff's 
failure  (admitted  by  him)  to  furnish  defendant's  council 
with  a  statement  of  the  designer's  qualifications  but  we 
find  nothing,  even  in  the  original  contract,  which  required 
defendant  to  pay  the  expense  of  bringing  such  designer 
to  China.  The  phrase  "maintain  and  pay  as  a  member  of 
his  own  staff"  would  seem  to  indicate  quite  the  contrary. 
But  be  that  as  it  may,  the  contract  whose  wrongful  ter- 
mination is  complained  of,  was  that  of  December,  1913, 
and  that,  as  we  have  seen,  contains  no  reference  to  a 
designer. 

Much  the  same  may  be  said  as  to  the  third  item  claimed, 
to  wit,  "Bonus  at  end  of  three  years,  $275."  This  ap- 
parently is  based  upon  paragraph  10  of  defendant's  com- 
munication of  September  14,  1912,  which  was  not  carried 
forward  into  the  new  contract.  Plaintiff  having  accepted 
the  latter,  whose  terms  were  inconsistent  with  the  former, 
must  of  course  abide  by  it  and  is  not  entitled  to  claim 
under  the  superseded  contract. 

IV. 

The  remaining  items  claimed  involve  the  question  of  the 
residential  privilege.  The  first  consists  of  "damages  sus- 
tained by  reason  of  loss  of  residence  site,  January  1,  1914, 
to  January  1,  1919,  $258."  This  appears  to  be  based  on 
the  first  paragraph  of  clause  (/)  of  the  contract  (Ex.  "H"). 
The  second  paragraph,  however,  provides  that  "the  allotted 
site  may  be  any  time  reclaimed  provide  the  College  allot 
another  site  and  provide  funds  to  replace  the  house",  etc. 
It  will  be  observed,  then,  that  this  clause  does  not  confer 
a  fixed  residential  period  of  five  years  but  that  its  termina- 
tion is  discretionary  with  the  defendant  and  that  the  latter 
does  not  even  undertake  to  "allot  another  site"  on  the 
campus.  The  evidence  here  (Ex.  "J")  shows  that  defendant 
did  offer  plaintiff  "another  site  *  *  *  adjacent  to 
the  campus."  In  view  of  the  very  wide  discretion  conferred 
on  plaintiff  by  the  second  paragraph  of  clause  (/)  it  seems 
at  least  doubtful  whether  damages  could  be  predicated  at 
all  upon  such  a  change.  But  it  is  clear,  at  any  rate,  that 
before  we  could  award  such  damages  there  would  need  to 


PAGET  V.  CANTON  COLLEGE,  MAR.  15,  1915.  467 

be  specific  evidence  that  plaintiff  would  suffer  a  pecuniary 
(and  not  merely  sentimental)  loss  by  accepting  the  new 
site  offered  by  the  defendant  in  preference  to  the  old,  and 
no  such  evidence  is  produced.  Of  course,  if  plaintiff  had 
actually  erected  a  house  on  the  original  site,  that  portion  of 
clause  (/)  which  requires  defendant  to  "provide  funds  to 
replace  the  house"  would  need  to  be  construed;  but  as  no 
house  was  completed,  or  even  started,  that  provision  need 
not  further  be  considered. 

The  last  item  claimed  is  "loss  sustained  by  cancellation 
of  contract  for  building  of  residence,  $500."  Plaintiff's 
testimony  (p.  63)  in  support  of  this  item  is  to  the  effect 
that  he  employed  a  contractor  to  start  the  work  of  con- 
struction and  that  the  latter  erected  certain  matsheds. 
Plaintiff  estimates  his  indebtedness  to  the  contractor  as 
$1,000,  Mexican  currency.  On  the  other  hand.  Dr.  Woods 
testifies  (p.  141)  that  the  matsheds  could  have  been  built 
for  $100  (Mexican),  and  that  he  has  had  a  larger  shed 
constructed  for  $80. 

Regardless  of  this  conflict,  however,  the  testimony  would 
not  afford  us  a  basis  for  awarding  damages  because  the 
matsheds  were,  according  to  plaintiff's  own  testimony  (p. 
63)  erected  "in  December,  1913".  But  the  new  contract, 
as  we  have  seen,  did  not  go  into  effect  until  the  following 
January.  Surely  we  could  not  av/ard  as  damages  for  the 
breach  of  a  contract,  items  accruing  before  the  contract 
existed.  Besides,  Dr.  Woods  testifies  (p.  141) — and  he  is 
corroborated  (p.  70)  rather  than  otherwise  by  plaintiff — 
that  the  plans  and  specifications  for  plaintiff's  residence 
were  never  submitted  to  defendant's  Council,  whose  ap- 
proval was  expressly  required  by  the  contract  (Ex.  "H") 
as  well  as  by  defendant's  Statutes  (Ex.  CC,  Art.  X,  sec.  8) 
before  any  construction  could  properly  be  undertaken ;  and 
that  plaintiff  was  warned  that  without  such  approval  he 
would  proceed  at  his  own  risk. 

Plaintiff  expressly  states  (p.  64)  that  he  has  neither  paid 
the  contractor  for  the  matsheds  nor  been  pressed  by  him, 
and  the  claim,  so  far  as  he  is  concerned,  is  therefore  merely 
a  contingent  one.  Passing  the  question  whether  damages 
can  now  be  allowed  for  such  a  liability,  it  is  clearly  im- 


468  I  EXTRATERRITORIAL  CASES. 

possible  to  adopt  the  suggestion  made  arguendo  that  the 
contractor's  claim  might  be  adjudicated  in  this  proceeding 
and  whatever  was  due  to  him  awarded.  The  contractor 
is  not  a  party  to  this  action.  He  has  filed  no  pleadings, 
offered  no  evidence,  and  in  fact  is  not  subject  to  this  Court's 
jurisdiction  except  as  he  voluntarily  submits  himself. 
Hence  no  judgment  here  could  bind  him.  The  evidence 
bffered  as  to  the  amount  due  him  might  show  the  figure 
claimed  to  be  entirely  too  high  or  entirely  too  low  but  in 
any  event  we  are  concerned  here  only  with  the  rights  of 
the  parties  to  this  cause. 

On  the  whole,  we  are  unable  to  find  in  the  evidence  before 
us  a  sufficient  basis  for  an  award  of  specific  damages.  It 
is  not  enough  that  the  terms  of  a  contract  may  be  departed 
from  (and  we  do  not  here  find  it  necessary  to  determine 
whether  there  was  technical  breach  of  this  contract)  ;  it 
is  essential  also  to  prove  legal  damage,  and  to  prove  it  by 
evidence  which  would  justify  the  Court  in  making  a  specific 
award.  For  the  law  does  not  treat  every  breach  as  ac- 
tionable; '  much  less  does  it  provide  substantial  damages 
for  every  departure.  There  may  be  injuria  sine  damno  as 
well  as  damnum  absque  injuria.  Believing  that  the  evi- 
dence discloses  at  most  nothing  more  than  the  first  of  these, 
we  have  no  alternative  but  to  find  for  the  defendant.  The 
latter  pleads  a  set-off  amounting  to  $49.50,  but  as  its  Pres- 
ident testified  (pp.  108  and  109),  speaking  of  this  claim 
and  another,  that  "all  those  items  except  one  have  been 
settled,"  and  as  the  exception  is  not  specified,  we  have  no 
basis  for  assuming  that  any  of  the  set-off  remains  unpaid. 

In  closing  we  desire  to  commend  the  course  pursued  by 
the  parties.  Their  deportment  toward  each  other  thruout 
the  trial  was  noticeably  correct  and  courteous  and  their 
attitude  from  the  time  their  dispute  arose  has  evidently 
been  that  of  those  having  an  honest  diff'erence  of  opinion 
which,  tho  not  adjustable  between  themselves,  was  never- 
theless not  allowed  to  produce  personal  feeling  but  was 
very  properly  submitted  to  the  tribunal  which  their  govern- 
ment provides  for  just  such  emergencies. 

*  13  Cyc,  13. 


NEWMAN  V.  BASCH,  MARCH,  1915.  469 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
take  nothing  by  his  petition  and  defendant  nothing  by  its 
cross-demand ;  but  as  each  appears  to  have  been  prosecuted 
in  entire  good  faith,  there  will  be  no  award  of  costs  to 
either  party. 


IN  THE  CITY  COURT  OF  NEW  YORK. 
Martha  K.  Newman  v.  Louis  Basch. 

[March,  1915,  89  Misc.  622,  152  N.  Y.  S.  456.] 

SYLLABUS. 
(By  the  Editor.) 

1.  COURTS:     Judgments.     American    consular    courts    in    China    are 

courts  of  record  and  their  judgments  are  enforcible  in  the  courts 
of  New  York  at  any  time  within  twenty  years. 

2.  Id.  :    Id.     Such   judgments   are   within    the    constitutional   guaranty 

of  "full  faith  and  credit,"  the  same  as  those  of  other  Federal 
courts. 

3.  Id.  :  Referees.     The  Judge  of  such  a  court  has  power  to  refer  a 

cause  pending  therein  to  a  single  referee  and  to  render  judg- 
ment on  his  report. 

Henry  S.  Dottenheim,  Esq.,  for  plaintiff. 
Henry  Brill,  Esq.,  for  defendant. 

McAvOY,  J.: 

An  issue  of  novel  impression  is  raised  by  the  pleadings 
in  this  action.  The  declaration  is  upon  an  alleged  judgment 
of  the  United  States  Consulate  General  of  Shanghai,  China. 
The  plea  is  that  the  judgment  was  not  duly  given  or  ren- 
dered. 

Consuls  have  anciently  been  the  repositories  of  qitasi 
judicial  functions.  As  representatives  of  the  variform 
populations  of  the  mediaeval  Italian  city  republics  it  was 
by  custom  and  usage  the  rule  to  refer  to  them  the  settle- 
ment of  differences  in  commercial  matters  between  citizens 
of  their  national  sovereignty  and  ultimately  criminal  causes 
involving  persons  of  the  same  nationality  committed  within 
the  quarter  of  the  city  where  their  nationals  were  accus- 
tomed to  resort  were  tried  and  punished  under  and  accord- 
ing to  foreign  or  exterritorial  authority.     In  1199  A.  D., 


470  I  EXTRATERRITORIAL  CASES. 

the  Emperor  Alexius  III  issued  a  chnjsobulum  of  priv- 
ileges conceded  to  the  Venetians  in  Greece  of  exterritorial 
character  which  granted  to  the  Venetians  right  of  trial 
of  criminal  and  civil  causes  before  their  local  representa- 
tives at  Constantinople.  In  1304  A.  D.,  Emperor  Androni- 
cus  II  granted  a  privilegium  aurea  bulla  nostra  munitum 
declaring  the  rights  and  jurisdiction  of  the  republic  of 
Genoa  within  his  realm.  The  Genoese  were  to  be  subject 
only  to  the  jurisdiction  of  their  national  authorities  in  the 
Byzantine  capital.  No  injury  was  to  remain  unpunished, 
no  right  unenforced,  whether  of  or  against  Greek  or  Gen- 
oese, in  these  Genoese  consular  courts.'  The  consuls  of 
the  city  of  Marseilles  were  granted  jurisdiction  over  their 
fellow  citizens  at  Tyre  and  Acre.  The  Venetian  consul  at 
Tyre  bound  himself  by  oath  "to  render  justice  according 
to  the  customs  of  the  port,"  and  if  these  were  not  of  a  deter- 
minative character,  then  upon  principles  of  natural  justice.^ 
From  1154  A.  D.  to  1445  A.  D.  the  Italian  city  republics 
of  Pisa,  Genoa,  Venice,  and  Florence  secured  capitula  or 
treaties  governing  their  subjects'  rights  and  privileges  in 
many  of  the  sovereign  cities  along  the  Mediterranean,  in 
Egypt  and  abutting  the  Barbary  Coasts.  Subsequent  to 
the  diminution  of  influence  of  the  Italian  republics  is  ob- 
served the  rise  of  influence  of  France  in  affairs  in  the 
Levant,  which  is  continuous  to  our  own  day.  And  it  is  said 
by  celebrated  writers  on  diplomatic  and  consular  subjects 
that  the  capitulations  of  modern  treaties  differ  little  from 
those  obtained  by  Francis  I  from  the  Sultan  Suleiman  in 
1535  A.  D.  This  was  the  first  of  the  capitulations  obtained 
by  a  great  European  power  from  the  Ottoman  Porte. ^ 

The  United  States  early  began  the  attempt  to  secure  these 
exterritorial  rights  for  its  citizens  resident  abroad  and 
concluded  its  first  treaty  of  this  character  in  1787  with 
Morocco;  but  the  earliest  act  of  our  Congress  relating  to 
American  consular  jurisdiction  in  the  Orient  is  an  act  of 
August  11,  1848.*     In  its  report  proposing  the  adoption  of 

^  See  Monumenta  Patriae  Historiae,  Liber  Jurium  Reipublicae  Gen- 
uensis,  II,  440. 

-  See  Merchants'  Rights  under  the  Crusaders,  Hinckley,  p.  4. 
'  Hinckley's  American   Consular  Jurisdiction,  10. 
*9  U.  S.  Stats,  at  Large,  p.  276,  c.  150. 


NEWMAN  V.  BASCH,  MARCH,   1915.  471 

the  bill  the  Senate  judiciary  committee  stated  that  it  was 
necessary  to  the  execution  of  the  treaty  of  capitulation  with 
China  of  1844,''  This  treaty  provided  (article  25  ^)  *  *  * 
Following  this  the  act  of  June  22,  1880,'  was  passed  in 
order  to  effectuate  and  carry  out  the  capitulations  in  the 
new  treaties  with  China,  Japan,  and  Siam.  The  second 
treaty  with  China  was  ratified  June  18,  1858,*  and  again 
bound  the  contracting  nations  by  article  27,  which  is  in 
the  very  words  heretofore  quoted  from  the  treaty  of  1844, 
the  former  and  the  latter  treaties  and  the  act  of  July  1, 
1870,^  comprising  the  basic  law  governing  the  erection  and 
constitution  of  Consular  Courts  of  China  as  embodied  in 
the  Revised  Statutes  of  the  United  States."  Since  these 
acts  of  Congress  all  declare  their  intent  to  effect  the  pro- 
vision of  treaties  granting  extraterritorial  jurisdiction,  they 
are  as  such  extensions  of  the  treaty  provisions  in  their 
relation  and  control  over  the  judicial  branch  of  the  govern- 
ment, whether  state  or  federal,  under  article  6,  section  2, 
of  the  Constitution  of  the  United  States,  providing  that  : 

"All  treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  state  shall  be  bound  thereby,  anything  in  the  Con- 
stitution or  laws  of  any  state  to  the  contrary  notwithstanding." 

The  judicial  authority  of  the  United  States  Consuls 
created  to  carry  into  full  effect  the  provisions  of  treaties 
is  as  equally  binding  on  state  courts  as  are  any  of  the  capit- 
ulations of  a  treaty.  The  authority  is  conferred  as  fol- 
lows: 

"To  carry  into  full  effect  the  provisions  of  the  treaties  of  the 
United  States  with  China,  *  *  *  the  minister  and  the  consuls 
of  the  United  States,  duly  appointed  to  reside  in  each  of  those 
countries,  shall,  in  addition  to  other  powers  and  duties  imposed  upon 
them,  respectively,  by  the  provisions  of  such  treaties,  respectively, 
be  invested  with  the  judicial  authority  herein  described,  which  shall 
appertain  to  the  office  of  minister  and  consul,  and  be  a  part  of  the 

=  8  U.  S.  Stats.,  597. 

°  See  ante,  p.  2,     Ed. 

'  12  U.  S.  Stats,  at  Large,  p.  72,  c.  179. 

'  12  U.  S.  Stats.,  1023. 

"  16  U.  S.  Stats,  at  Large,  183,  c.  194. 

"Sections  4083  to  4130  (U.  S.  Comp.  St.,  1913,  pars.  7633-7676). 


472  I  EXTRATERRITORIAL  CASES. 

duties  belonging  thereto,  wherein,  and  so  far  as,  the  same  is  allowed 
by  treaty."  " 

The  jurisdiction  in  civil  causes  conferred  is  to  embrace 
all  controversies  between  citizens  of  the  United  States  or 
others  provided  for  by  such  treaties;  and  jurisdiction  in 
civil  matters  in  all  cases  is  to  be  exercised  and  enforced 
in  conformity  with  the  laws  of  the  United  States,  which  are, 
so  far  as  is  necessary  to  execute  such  treaties,  extended  over 
all  citizens  of  the  United  States  in  those  countries.  Since 
the  statutes  of  the  United  States  are  extended  over  and 
apply  to  the  enforcements  of  the  capitulations  of  the  treaties 
conferring  jurisdiction,  as  well  as  grant  the  imposition  of 
judicial  authority,  the  judgments,  or  determinations  called 
judgments,  are  subject  to  and  have  the  same  force  and 
effect  and  are  entitled  to  the  same  enforcing  remedies  within 
any  state  as  judgments  of  federal  courts  outside  of  the 
state  of  their  territorial  location.  The  effect  of  judgments 
of  the  United  States  courts  and  their  process  is  the  same 
as  the  effect  of  judgments  of  a  state  court.^^ 

Any  party  who  recovers  a  judgment  in  any  common-law 
cause  and  in  a  United  States  court  is  entitled  to  similar  re- 
medies upon  the  same  to  reach  the  property  of  the  judgment 
debtor  as  are  now  provided  in  like  causes  by  the  law  of  the 
state  in  which  the  court  is  held."  The  remedy  of  suit  upon 
a  judgment  to  awaken  an  expiring  or  expired  judgment 
lien  is  thus  by  statute,  if  not  by  the  comity  relation,  a 
remedy  applicable  to  and  enforcible  thru  a  judgment  under 
the  judicial  authority  of  the  United  States.  It  seems  clear, 
then,  in  exploring  this  unbeaten  path  without  aids  from 
precedents,  that  analogous  reasoning  justifies  the  conclu- 
sion that  this  consular  judgment  is  properly  sued  upon  as 
such.  The  determination  or  judgment  of  the  Consular 
Court  having  been  made  with  jurisdiction  of  the  parties 
and  the  subject-matter,  it  seems  *  *  *  entitled  equally 
with  judgments  thruout  the  United  States  to  full  faith  and 


"Act  of  June  22,  1860,  12  Stats,  at  Large  72;  Act  of  July  28, 
1866,  c.  296,  14  Stats,  at  Large,  322;  U.  S.  Rev.  Stats.  4083. 

"United  States  v.  Morrison,  4  Pet.  124,  7  L.  ed.  804;  Barth  v. 
Makeever,  4  BIss.  206,  Fed.  Cas.  No.  1069. 

'^U.  S.  Rev.  Stats.,  sec.  916;  U.  S.  Comp.  St.  1913,  par.  1540. 


NEWMAN  V.  BASCH,  MARCH,  1915.  473 

credit  in  the  courts  of  every  state  in  the  Union,  in  like 
case  with  judgments  of  state  courts  under  our  Federal 
Constitution. 

Is  this  court  then — having  criminal  jurisdiction,  whereby 
the  consul  was  fully  empowered  to  arraign  and  try  all 
citizens  of  the  United  States  charged  with  offenses  against 
the  law  committed  by  them  in  China,  and  in  civil  causes 
embracing  all  controversies  between  citizens — a  court  of 
record?  The  determination  of  this  question  is  necessary, 
because  if  the  consular  judgment  is  *  *  *  of  a  court 
not  of  record,  then  the  limitation  of  6  years  upon  a  suit  on  a 
judgment  rendered  therein  would  apply.'*  And  if  the  court 
be  one  of  record,  the  time  in  which  the  judgment  is  pre- 
sumed to  be  paid  and  satisfied  is  after  the  expiration  of 
20  years. '^ 

It  is  not  to  be  overlooked  that  this  consular  tribunal  is 
a  court  of  limited  jurisdiction.  Its  limitations  are  con- 
tained in  the  treaty  with  the  foreign  nation  affected  and 
the  statutes  passed  to  carry  such  treaty  into  effect.  Its 
jurisdiction  cannot  therefore  be  extended  beyond  their  leg- 
itimate meaning.^"  However,  neither  treaty  provides  nor  * 
statute  declares  a  provision  which  erects  these  consular 
courts  as  courts  of  record;  but  this  is  not  decisive  against 
the  claim  that  they  are  *  *  *.  The  Circuit  Court  of 
the  United  States,  erected  by  statute,  pursuant  to  the  au- 
thority of  Congress,  is  not  declared  by  any  statute  to  be  a 
court  of  record;  but  it  has  been  declared  to  be  so  by  judicial 
opinion,  and  is  universally  recognized  as  such  so  far  as 
its  judgments  and  other  jurisdictional  matters  are  con- 
cerned.'^ The  court  there  determined  the  question  upon 
the  ground  that  a  writ  of  error  would  run  to  it.^^     If  the 

"  Section  382,  subd.  7,  Code  of  Civil  Procedure. 

"  Section   376,   Code   of   Civil   Procedure. 

"  See  In  re  Ross,  ante,  p.  65. 

"The  Thomas  Fletcher  (C.  C),  24  Fed.,  481. 

"  Citing  3  Blackstone's  Commentaries,  24  *  wherein  is  contained 
the  definition  that  a  court  of  record  is  "a  court  where  the  acts  and 
judicial  proceedings  are  enrolled  in  parchment  for  a  perpetual  me- 
morial and  testimony,"  which  rolls  are  called  the  records  of  the  court, 
and  are  of  such  high  and  supereminent  authority  that  their  truth  is 
not  to  be  called  in  question. 


474  I  EXTRATERRITORIAL  CASES. 

existence  of  a  record  be  denied,  it  shall  be  tried  by  nothing 
but  itself ;  that  is,  upon  bare  inspection  whether  there  be  any 
such  record  or  no,  else  there  would  be  no  end  of  disputes.^^ 
Rolls  or  records  contain  a  history  of  the  proceedings 
of  the  cause  to  which  they  relate ;  they  give  the  name  of  the 
court  in  which  the  judgment  was  rendered,  when  and  where 
it  was  held,  the  process,  pleadings,  adjournments,  verdict, 
and  judgment  of  the  court.  They  are  authenticated  by  a 
signature  of  some  public  officer  and  kept  as  a  perpetual 
memorial  of  the  transaction.  When  issue  is  joined  upon 
the  existence  of  such  record,  it  is  tried  and  decided  by  the 
record  itself. 

Neither  is  a  statutory  declaration  that  a  court  is  a  court 
of  record  conclusive  on  the  courts,  if  its  history,  procedure 
and  practice  do  not  comport  with  the  usual  definition  with 
which,  judicial  construction  has  surrounded  this  character 
of  tribunal.  For  instance  a  statute  declaring  the  Justice's 
Court  of  the  City  of  Albany,  instituted  in  1821,  to  be  a 
court  of  record,  was  held  -"  not  to  constitute  the  court  in 
a  strict  legal  sense  entitled  to  that  character,  because  its 
judgments  were  not  enrolled.  They  were  merely  entered 
in  a  book  kept  for  that  purpose,  and  these  entries  were 
held  not  to  constitute  what  in  legal  language  is  called  a 
record.  The  distinction  indicated  in  that  case  between 
courts  of  record  and  not  of  record  related  back  to  the  dif- 
ferences recognized  in  common  law  pleas.  At  common  law 
the  plea  to  an  action  upon  a  judgment  rendered  in  a  court 
not  of  record  was  a  plea  nil  debet;  to  the  judgment  of  those 
courts  whose  records  import  absolute  verity,  to  an  action 
of  debt  on  a  judgment,  the  plea  nul  tiel  record  is  the  proper 
plea,  and  7iil  debet  is  bad  on  demurrer,  tho  good  after 
verdict.-^ 

Applying  this  test,  if  the  plea  of  nul  tiel  record  were  to 
be  made  here,  a  trial  by  inspection  of  the  record  presented 
and  proof  of  the  judgment  roll,  without  extraneous  aid  thru 
other  evidence,  exhibits  jurisdiction  of  the  defendant  and 

"Id.,  24.* 

'"Wheaton  v.  Fellows,  23  Wend.   (N.  Y.),  375. 

"Bullis  V.  Giddens,  8  Johns.  (N.  Y.),  82;  White  v.  Converse,  20 
Wend.   (N.  Y.),  266. 


NEWMAN  V.  BASCH,  MARCH,  1915.  475 

subject-matter  and  a  determination  within  such  jurisdic- 
tion by  the  proper  tribunal  after  submission  by  the  defend- 
ant summoned.  This  would  suffice.  It  is  not  sufficient, 
according  to  the  Court  of  Appeals  ^^  to  constitute  a  court 
of  record  in  a  legal  sense  that  the  court  should  have  a 
clerk  and  a  seal.  It  should  be  so  administered  and  con- 
ducted that,  if  the  existence  of  the  record  be  denied,  it 
shall  be  tried  by  nothing  but  itself — that  is,  upon  bare 
inspection — whether  there  be  any  such  record  or  no. 

If  evidence  of  the  court's  character  may  be  allowed  from 
its  own  regulations,  the  following  is  pertinent :     *     *     * 

"All  original  papers  shall  be  filed  at  once  and  never  removed. 
No  person  but  an  officer  of  the  consulate  or  the  minister  should  be 
allowed  access  to  them.  All  papers  in  a  case  must  be  kept  together 
in  one  inclosure  and  numbered  as  in  the  docket,  w^ith  the  parties' 
names,  the  nature  of  the  proceedings,  the  year  of  filing  the  petition 
and  the  final  judgment  conspicuously  marked  on  the  inclosure,  and 
each  year's  cases  kept  by  themselves  in  their  order."  *" 

Since  it  has  not  been  judicially  determined  that  this 
Consular  Court  is  a  court  of  record,  nor,  as  has  been  said, 
is  it  declared  as  such  in  the  treaty  allowing  the  creation 
of  these  extraterritorial  courts,  or  in  the  statute  carrying 
them  into  effect,  a  rule  to  the  effect  that  it  possess  the 
characteristics  of  such  a  court  must  be  made  by  analogy, 
applying  the  ancient  tests  of  the  characteristics  necessary 
to  so  constitute  it. 

A  court  declared  to  be  a  court  of  record  by  statute  is 
held  by  the  Court  of  Appeals  to  be  not  a  court  of  record 
as  a  matter  of  judicial  opinion.-*  And  a  court  not  declared 
to  be  a  court  of  record  by  statute  is  declared  to  be  such 
thru  judicial  reasoning  and  determination.^^ 

The  right,  therefore,  to  be  so  considered,  must  depend  on 
legal  history  rather  than  statutory  declaration  or  judicial 
precedent.  Because  of  the  importance  of  its  litigation,  its 
long-continued  exercise  of  jurisdiction  in  all  matters  of  civil 
and  criminal  conception,  its  enrollment  of  pleadings  and 

■'  Hutkopf  V.  Demorest,  103  N.  Y.  377,  8  N.  E.  899,  10  N.  E.  535. 
'^  Consular   Court  Regulations  for   China,   81. 
"Wheaton   v.   Fellows,   23   Wend.    (N.    Y.)    375. 
-"The   Thomas   Fletcher,   24   Fed.   481. 


476  I  EXTRATERRITORIAL  CASES. 

determinations,  so  that  by  bare  inspection  the  record  estab- 
lishes itself,  *  *  *  its  characteristics  do  establish  it  as 
a  court  of  record  within  the  legal  sense,-"  the  time  during 
which  its  judgments  may  be  presumed  to  be  satisfied  or 
discharged  extending  to  20  years  after  rendition. 

The  statutes  declare  it  to  be  the  duty  of  minister  and 
con,sul  to  encourage  the  settlement  of  controversies  of  civil 
character  by  mutual  agreement  or  by  submitting  them  to  a 
decision  of  referees  -~  agreed  upon  by  the  parties.  At  the 
court  of  the  consul  this  controversy  was  by  mutual  agree- 
ment submitted  to  a  single  referee,  and  his  report  signifies 
that  he  heard  and  decided  the  case,  and  the  consul  indicates 
his  acceptance  of  the  decision  and  directs  entry  of  the  judg- 
ment. I  do  not  agree  that  the  use  of  the  plural  word  in 
the  statute  ousts  the  jurisdiction  of  the  consul  in  causes 
referred  by  agreement  to  a  single  referee,  because  sub- 
mission to  the  jurisdiction  of  the  consular  court  and  to 
the  decision  of  a  referee  is  sufficient  for  the  exercise  of  the 
consular  duty  of  acceptance  of  the  decision  and  the  direc- 
tion for  judgment  and  the  execution  thereof. 

There  is  no  limitation  in  the  statute  as  to  the  number  of 
referees  necessary  to  render  an  award.  I  should  feel  in- 
clined to  hold  that  the  legislation  was  mandatory  were  the 
requirement  in  the  statute  for  a  specific  number  of  referees. 
Since  no  number  is  mentioned  and  no  requisite  indicated 
as  to  the  number  who  must  join  in  an  award,  I  conclude 

^  For  an  instructive  discussion  as  to  what  constitutes  a  court  of 
record  see  Hahn  v.  Kelly,  34  Cal.  391,  94  Am.  Dec.  742  and  note. 
Ed. 

^  On  application  of  either  party  and  advance  of  the  fees,  the 
consul  shall  compel  the  attendance  of  any  witness  within  his  jurisdic- 
tion before  himself,  referees,  or  commissioners.  (Consular  Court 
Reg-ulations  for  China,  12.) 

When  parties  agree  to  a  reference  they  shall  immediately  file  a 
rule,  and  the  case  be  marked  "Referred;"  a  commission  shall  then 
issue  to  the  referees,  with  a  copy  of  all  papers  filed  in  the  case. 
(Id.,  37.) 

The  referees  shall  report  their  award  to  the  consul,  who  shall  ac- 
cept the  same,  and  give  judgment,  and  issue  execution  thereon,  un- 
less satisfied  of  fraud,  perjury,  corruption  or  gross  error  in  the 
proceedings.     (Id.,  38.) 


UNITED  STATES  V.  GRIMES  &  LECLAIR,  APR.  17,  1915.      477 

that  it  is  left  to  the  agreement  of  the  parties  as  to  whether 
or  not  there  should  be  one  or  more  referees. 

I  accordingly  direct  judgment  for  the  plaintiff  for  the 
amount  of  the  Consular  Court's  judgment,  with  interest. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Peter  A.  Grimes. 

[Cause  No.  431;  filed  April  17,  1915.] 

United  States  v.  Edward  C.  LeClair  alias  Edward  C. 

Burke. 

[Cause  No.  431;   filed  April  17,  1915.] 

SYLLABUS. 
(By  the  Court.) 

1.  CITIZENSHIP :   ONUS  Probandi.    While  an  information  must  aver 

that  the  accused  is  an  American  citizen,  the  burden  of  proving 
the  contrary  rests  upon  him. 

2.  LAW:   The  Federal  Constitution  does  not  extend  to  this  extra- 

territorial jurisdiction. 

3.  Id,:  Certain  Penal  Statutes  of  Maryland  continued  in  force  in  the 

District  of  Columbia  by  act  of  Congress  are  operative  here  by 
the  general  extension  of  the  "laws  of  the  United   States." 

4.  CRIMES:    PENALTIES.     The  maximum   penalty   imposed   upon   one 

who  had  been  previously  convicted  of  the  same  offense,  but 
reduction  allowed  in  the  case  of  another  not  so  convicted  and 
who  had  pleaded  guilty  in  the  case  at  bar. 

Earl  B.  Rose,  Esq.,  Acting  and  Special  Dist.  Atty.,  for  the 
prosecution. 

M.  L.  Heen,  Esq.,  for  the  defendant  LeClair. 
Pete?'  A.  Grimes,  pro  se. 

LOBINGIER,  J.: 

The  defendant  in  each  of  the  above  entitled  causes  is 
charged  with  the  crime  of  escape,  in  that  on  April  10,  1915, 
he  being  then  and  there  in  the  prison  for  American  convicts 
at  Shanghai,  China,  "under  conviction,  judgment,  sentence 
and  commitment  to  serve  imprisonment,  and  being  then  and 
there  serving  said  sentence  or  sentences  and  before  the 


478  I  EXTRATERRITORIAL  CASES. 

time  had  expired  for  which  he  had  been  so  convicted,  sen- 
tenced  and  committed,  willfully  and  unlawfully  did  escape : 
Against  the  laws  of  the  United  States." 

The  defendant  in  cause  No.  432  pleaded  guilty  to  the  in- 
formation. The  defendant  in  cause  No.  431  pleaded  not 
guilty  but  called  only  one  witness  who  offered  nothing  to 
meet  the  conclusive  showing  by  the  prosecution  that  the 
prisoners  in  question  did  escape  on  the  occasion  mentioned, 
after  locking  up  their  keeper,  and  were  at  large  for  several 
hours,  being  later  apprehended  by  the  municipal  police  of 
Shanghai  and  returned  to  their  proper  place  of  custody. 

Each  information  further  charges  that  the  defendant 
therein  named  is  "a  citizen  of  the  United  States"  and  as 
that  is  a  matter  peculiarly  within  their  knowledge  the 
burden  rests  upon  them  to  show  the  contrary  ^  and  neither 
of  them  has  produced  any  evidence  thereon.  Besides  each 
has  been  heretofore  tried  and  convicted  in  this  Court  as  an 
American  citizen. 

The  defendant  in  cause  No.  431  invoked  certain  clauses 
of  the  Federal  Constitution  which  however  is  not  in  force 
in  this  extraterritorial  jurisdiction.-  Consequently  its  pro- 
visions regarding  jury  trials  are  not  available.^ 

The  only  remaining  question  presented  concerns  the 
penalty  to  be  imposed.  A  provision  of  the  Compiled  Stat- 
utes *  in  force  in  the  District  of  Columbia  reads  as  follows : 

"If  any  male  or  female  criminal  shall  run  away  before  the  time 
shall  be  fully  expired  for  which  such  criminal  shall  be  convicted  and 
adjudged,  the  time  of  service  and  labour  of  such  criminal  shall  be 
extended  *  *  *  not  exceeding  one  year  for  every  time  such 
criminal  runs  away." 

This  was  originally  a  statute  of  Maryland  ^  and  was  con- 
tinued in  force  in  the  District  of  Columbia  by  certain  legis- 
lation   enacted    by    Congress    for    said    District.''     Under 


'  12  Cyc.  381,  382;  11  Cyc.  878;  Nat.  etc.  Ass'n.  v.  Sparks,  83  Fed. 
225. 

^  In  re  Ross,  ante,  p.  50. 

=  Dorr  V.  U.  S.,  195  U.  S.  138,  49  L.  ed.  128. 

■•  Albert  and  Lovejoy  edition    (Washington,  1894) ,  Ch.  16,  sec.  155. 

'  Act  of  1793,  Ch.  57,  sec.  14. 

"In  re  Wolf,  27  Fed.  Rep.  606,  612. 


UNITED  STATES  V.  GRIMES  &  LECLAIR,  APR.  17,  1915.      479 

previous  legislation  as  construed  by  the  Court  of  Appeals  ^ 
the  laws  thus  enacted  for  the  District  of  Columbia  are  in 
force  in  this  extraterritorial  jurisdiction  and  we  are  there- 
fore authorized  to  apply  to  this  cause  the  section  above 
quoted. 

This  is  the  second  offense  of  the  same  kind  committed 
by  the  defendant  in  cause  No.  431  besides  which  he  has 
repeatedly  been  guilty  of  more  serious  offenses.  We  must 
therefore  impose  upon  him  the  maximum  penalty  fixed  by 
the  statute  and  it  is  accordingly  considered  and  adjudged 
that  the  defendant,  Peter  A.  Grimes,  be  and  he  is  hereby 
sentenced  to  imprisonment  for  one  year,  in  addition  to 
sentences  heretofore  imposed,  and  to  pay  the  costs  of  the 
prosecution. 

The  defendant  Edward  C.  LeClair,  alias  Edward  C. 
Burke,  having  pleaded  guilty  and  not  having  previously  been 
convicted  of  an  offense  of  the  same  kind,  will  not  be  given 
the  extreme  penalty,  but  he  is  hereby  sentenced  to  im- 
prisonment for  eight  months  and  to  pay  the  costs  of  the 
prosecution. 

Both  of  said  sentences  shall  be  served  (after  the  expira- 
tion of  sentences  heretofore  imposed  upon  the  defendants 
by  this  Court  and  after  their  transfer  from  the  Prison 
for  American  convicts  at  Shanghai,  China)  in  Bilibid 
Prison,  Manila,  Philippine  Islands,  the  place  of  incarcera- 
tion designated  by  the  Attorney-General  of  the  United 
States  under  the  authority  conferred  by  sec.  5546  of  the 
Revised  Statutes. 

On  the  same  day  sentence  was  imposed  in  cause  No.  433  on  one  of 
the  defendants  in  the  foregoing  cause  as  follows: 

LOBINGIER,   J.: 

The  information  in  this  cause  charges 
"that  said  Edward  C.  LeClair  within  the  jurisdiction  of  said  Court, 
to  wit  within  the  American  prison  for  convicts  in  China  at  Shanghai, 
China,  on  or  about  the  tenth  day  of  April,  1915,  being  then  and 
there  by  said  United  States  Court  for  China,  for  the  crime  of  armed 
robbery,  under  conviction,  judgment,  sentence  and  commitment  to 
serve  a  term  of  imprisonment  and  being  then  and  there  serving  such 
sentence,  did  feloniously  take  and  carry  way  from  the  said  jail 
or  prison  a  38  calibre  revolver,  the  property  of  the  United  States  of 
America  of  value  of  Gold  $20  more  or  less  and  did  thereby  commit 

'  Biddle  v.  U.  S.,  ante,  p.  120. 


480  I  EXTRATERRITORIAL  CASES. 

the   crime   of  petit   larceny   against  the   laws   of  the   United   States 
(section  827)    of  the  Code  of  Law  for  the  District  of  Columbia." 

It  appears  from  evidence  in  other  cases  involving  the  same 
circumstances  that  the  defendant's  abstraction  of  the  revolver  was 
an  incident  of  his  escape  from  the  prison  for  American  convicts  at 
Shanghai,  an  offense  for  which  he  has  already  been  sentenced.  As 
it  does  not  appear  to  have  been  a  case  of  larceny  for  the  purpose 
of  gain  and  as  the  defendant  has  pleaded  guilty  we  will  not  impose 
the  maximum  penalty  of  one  year's  imprisonment,  or  a  fine  of  two 
hundred  dollars  or  both,  but  taking  into  account  the  facts  above 
mentioned  the  defendant  is  sentenced  to  imprisonment  for  six  months, 
to  be  served  (after  the  expiration  of  the  sentences  heretofore  im- 
posed upon  him  by  this  Court  and  after  transfer  from  the  Prison 
for  American  Convicts  at  Shanghai,  China)  in  Bilibid  Prison, 
Manila,  Philippine  Islands,  the  place  of  incarceration  designated  by 
the  Attorney-General  of  the  United  States  under  authority  con- 
ferred by  sec.  5546  of  the  Revised  Statutes. 

He  is  further  adjudged  to  pay  the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

John  A.  Richards,  Plaintiff,  v.  Mary  Paine  Richards, 

Defendant. 

[Cause  No.  424;  filed  May  1,  1915.] 

SYLLABUS. 
(By  the  Coixrt.) 

1.  DIVORCE:    The  Jurisdiction  of  this  court  to  apply  and  enforce 

Acts  of  Congress   relating  to  divorce  reaffirmed. 

2.  Id.:   Id.:   Proceedings  in  Rem.     This  court  has  jurisdiction  of  a 

proceeding  in  rem  regardless  of  the  residence  or  nationality  of 
a  personal  defendant  therein. 

3.  Id.  :  Id.  :  Id.  :  A  suit  for  divorce  without  seeking  alimony  or  other 

relief   in  personam  is   such   a   proceeding. 

4.  Id.  :  Id.  :  Id.  :   The  Object  of  such  a  suit  is  merely  to  determine 

the  plaintiff's  status;   a  foreigner  may,  therefore,  be  made  de- 
fendant and  served  by  publication. 

5.  Id.:  Voluntary  Appearance.     Jurisdiction  of  the  subject  matter 

being  conferred   by   law,   defendant  waives   jurisdiction  of  the 
person   by   a   voluntary   appearance. 

6.  Id.:   Evidence  found  to  establish  the  defendant's  adultery  and  to 

justify  a  decree  of  divorce  a  vinculo  matrimonii. 

7.  Id.:  Relief  Restricted.     Question  of  remarriage  and  costs  left  to 

tribunals  of  defendant's  nationality. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  plaintiff. 
Earl  B.  Rose,  Esq.,  Acting  Dist.  Atty.,  amicus  curiae. 


RICHARDS  V.  RICHARDS,  MAY  1,  1915.  481 

LOBINGIER,  J.: 

The  parties  to  this  cause  were  married  at  the  American 
Consulate  in  Shanghai  by  Dr.  John  R,  Hykes,  an  American 
clergyman,  on  August  23,  1902.  The  husband  is  a  native 
born  American  citizen,  while  the  wife  is  of  Chinese  birth 
and  parentage.  The  husband  now  seeks  a  divorce  alleging 
in  his  petition : 

"That  between  the  month  of  December,  1913,  and  the  date  of  this 
petition  at  divers  dates,  times  and  places  within  and  in  the  vicinity 
of  Shanghai,  China,  the  said  defendant  has  committed  adultery  with 
one  E.  Von  der  Linde. 

"That  at  Shanghai,  China,  on  the  26th  day  of  December,  1914, 
the  said  defendant  disregarding  the  solemnity  of  her  marriage  vow 
wilfully  left  the  bed  and  board  of  the  plaintiff  and  deserted  him 
and  ever  since  the  25th  day  of  January,  1915,  until  the  date  of  this 
petition  has  lived  and  still  is  living  in  a  state  of  open  and  notorious 
adultery  with  the  aforesaid  E.  Von  der   Linde,  at  Shanghai,  China. 

"That  there  are  no  issue  of  said  marriage." 

Plaintiff's  prayer  is  "that  the  bonds  of  matrimony  be- 
tween himself  and  the  defendant  be  dissolved"  and  no 
pecuniary  or  further  relief  is  asked.  The  defendant  pre- 
sented no  answer  but  has  filed  a  voluntary  appearance. 

The  first  question  to  be  determined  is  one  of  jurisdiction. 
That  this  Court  is  authorized  to  apply  and  enforce  all 
applicable  acts  of  Congress,'  including  those  relating  to 
divorce,^  is  now  well  established,  and  this  would  ordinarily 
remove  any  question  as  to  jurisdiction  of  the  subject  matter. 
On  the  other  hand,  the  marriage  of  the  defendant,  even  tho 
of  alien  birth,  would  normally  change  her  citizenship  to 
that  of  her  husband,''  which  would  likewise  give  jurisdiction 
of  the  person.  The  difficulty  in  the  case  arises  from  the 
fact  that  the  defendant  is  not  of  a  class  "who  might  herself 
be  lawfully  naturalized"  in  any  other  way.*     The  question 


'U.  S.  Rev.  Stats.,  sec.  4086;  Biddle  v.  U.  S.,  ante,  p.  120. 

-  Cavanagh  v.  Worden,  ante,  p.  365. 

'U.   S.   Rev.   Stats.,  sec.   1994. 

'U.  S.  Rev.  Stats.,  sec.  2169;  2  Cyc,  111,  note  19.  See,  however, 
Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  79,  80,  where 
it  is  observed  (note)  :  "Marriage  of  a  Chinese  woman  to  a  German 
was  declared  in  an  agreement  in  1888  between  the  governments  of 
the  two  countries  to  make  the  Chinese  woman  subject  to  German 
jurisdiction.     Notwithstanding    the    statutory    inhibition    against   the 

14008  O.  W. 31 


482  I  EXTRATERRITORIAL  CASES. 

is  whether  this  fact  affects  the  jurisdiction  not  merely  of 
the  defendant's  person  (which  her  voluntary  appearance 
waives)  but  (since  a  defendant  in  this  Court  must  ordi- 
narily be  an  American  citizen)  of  the  subject  matter? 

If  this  were  an  action  in  personam  where  pecuniary  or 
other  relief  were  sought  directly  against  the  defendant, 
a  different  question  would  be  presented.  But  the  American 
government  has  reserved  to  itself  jurisdiction  of 

"All  questions  in  regard  to  rights,  whether  of  property  or  person, 
arising  between  citizens  of  the  United  States  in  China"''; 

and  has  endowed  this  Court 

"With  all  the  judicial  authority  necessary  to  execute  the  provi- 
sions of  such  treaties."' 

Moreover  it  is  the  general  rule  that  even  extraterritorial 
courts  like  this  have  jurisdiction  of  proceedings  in  rem 
regardless  of  the  citizenship  of  a  defendant  therein^ 

"Actions  in  rem  are  maintainable  where  the  court  has  no  jurisdic- 
tion over  the  parties,  but  only  over  the  subject  matter." ' 

Now  it  is  settled  by  a  preponderance  of  authority  '•  that 
a  simple  action  for  divorce,  without  alimony  or  other  per- 
sonal relief,  is  a  proceeding  in  retn. 

naturalization  of  Chinese,  it  was  stated  by  Secretary  of  State  Bayard 
that  the  agreement  between  Germany  and  China  would  probably 
'assist  in  determining  the  status,  in  China,  of  the  Chinese  wife  of 
an  American  citizen,  assuming  the  marriage  to  be  consensual  and 
monogamous.'  For.  Rel.  (1888),  Pt.  I,  p.  349;  see  also  p.  319,  347, 
683;  and  infra,  p.  94." 

°8  U.  S.  Stats,  at  Large,  597,  Treaty  of  1844,  Art,  XXV;  Malloy, 
Treaties,   I,   203,  mite,  p.  2. 

"Act  of  Congress  of  June  22,  1860,  12  U.  S.  Stats,  at  Large, 
sec.  3,  p.  73;  U.  S.  Rev.  Stats.,  sec.  4085. 

'  Papayanni  v.  Russian  Steam  Navigation  Trading  Co.,  ante,  p.  12. 

'Bishop,  Marriage  &  Divorce  (6th  ed.),  sec.  147.  Cf.  the  same 
author's  Marriage,  Divorce  &  Separation,  sec.  27. 

^England:  Niboyet  v.  Niboyet,  4  P.  D.,  1,  12. 

California:  Newman's  Estate,  75  Cal.,  213;   7  Am.  St.  Rep.,  146. 

Illinois:  Roth  v.  Roth,  104  111.,  35;  44  Am.  Rep.,  81. 

Missouri:  Ellison  v.  Martin,  53  Mo.,  575. 

New  York:  Rigney  v.  Rigney,  127  N.  Y.,  408;  24  Am.  St.  Rep.,  462. 

Utah:  Gibbs  v.  Gibbs,  26  Utah,  382;  73  Pac,  641;  14  Cyc,  580. 


RICHARDS  V.  RICHARDS,  MAY  1,  1915.  483 

"The  res  is  the  status  of  marriage,  local  to  the  domicil."  ^' 

Hence  the  prevailing  rule  gives  jurisdiction  of  such  a 
proceeding  to  the  forum  of  plaintiff's  residence.  The 
residence  or  citizenship  of  defendant  is  considered  imma- 
terial ;  for  the  purpose  of  the  proceeding  is  to  fix  the  status 
of  the  one  M^ho  invokes  the  Court's  jurisdiction. 

"Every  State  has  an  undoubted  right  to  determine  the  status,  or 
domestic  and  social  condition,  of  the  persons  domiciled  within  its 
territory."  " 

This  is  the  doctrine  not  alone  of  the  American  courts  '^ 
but  of  authorities  on  private  international  law  as  vvell, 
one  ^'^  of  whom  discusses  the  question  as  follows : 

"What  are  we  to  say,  however,  to  the  case  where  one  spouse  only 
obtains  naturalization  in  a  foreign  country  and  has  himself  divorced 
there?  If,  as  is  the  case  in  France,  the  law  does  not  provide  that 
the  naturalization  of  the  husband  affects  the  wife  ipso  jure,  such 
cases  will  occur  not  unf requently.  Laurent "  thinks  that  such  a  con- 
flict, supposing  that  the  personal  law  of  the  other  spouse  does  not 
allow  divorce  on  the  same  conditions,  is,  from  the  point  of  view  of 
positive  law,  insoluble.  He  thinks,  however,  that  the  State  to  which 
the  one  spouse  has  gone  over,  must  give  him  or  her  a  divorce  with 
all  its  consequences,  and  as  a  matter  of  fact  judgments  to  this  effect 
have  been  pronounced  both  by  the  courts  of  first  instance  and  by 
the  Appeal  Court  at  Brussels." " 

\^niere,  as  in  this  case,  the  Court  is  an  extraterritorial 
one,  citizenship  as  well  as  residence  on  the  part  of  the 
plaintiff  might  be  necessary;  but  here  the  plaintiff  meets 
that  requirement.  There  seems  to  be  no  doubt,  conse- 
quently, that  this  Court  has  jurisdiction  of  the  subject 
matter. 

II. 

Under  the  foregoing  doctrine,  jurisdiction  of  defendant's 
person  is  not  essential  since  it  is  affected  indirectly,  if  at 

"Bishop,  Marriage  &  Divorce,    (6th  ed.),  sec.   147. 

"  Taney,  C.  J.,  in  Strader  v.  Graham,  10  How.  (U.  S.)  82,  13  L. 
ed.,  337. 

'=14  Cyc,  588,  589;  Tolen  v.  Tolen,  2  Blackf.  (Ind.)  407;  21  Am. 
Dec,  742. 

"Bar,  Private  International  Law,  (2nd  ed.),  386. 

"  Le  droit  civil  international  (Brussels  &  Paris,  1880-2)  V,  sec.  147. 

"Decisions  of  May  12  and  Dec.  31,  1877;  Jurisprudence,  V,  513. 


484  I  EXTRATERRITORIAL  CASES. 

all,  by  the  relief  sought  and  granted,  the  main  purpose 
of  the  action  being  the  determination  of  plaintiff's  status. 
That  of  defendant  is  left  to  be  fixed  by  the  law  and  Courts 
of  defendant's  domicil.  Accordingly,  most  American  tri- 
bunals regularly  take  jurisdiction  where  the  service  of 
process  upon  the  defendant  is  constructive  only  and  effected 
by  publication."'  In  this  case,  however,  the  defendant  was 
not  only  served  with  a  summons  within  this  Court's  ter- 
ritorial jurisdiction  but  has  voluntarily  appeared  and  sub- 
mitted herself  thereto.  That  alone  has  been  considered 
sufficient  to  confer  jurisdiction  upon  a  court  of  such  a 
character  as  this.^^ 

III. 

The  ground  set  forth  in  the  petition  is  adultery  and  the 
evidence  in  support  thereof  appears  to  be  conclusive.  In- 
deed there  is  disinterested  testimony  that  defendant  herself, 
after  seeing  the  petition,  stated  that  it  was  substantially 
true.  This  is  a  ground  for  absolute  divorce  under  the  acts 
of  Congress  relating  to  both  the  District  of  Columbia  ^® 
and  Alaska  '■'  which  we  are  authorized  to  enforce.-" 

There  being  no  question  of  fact  in  the  case,  and  the 
Court's  jurisdiction  being  thus  established,  we  must  find 
that  the  plaintiff  is  entitled  to  a  decree  of  divorce  a  vinculo 
matrimonii. 

It  is  accordingly  considered  and  decreed  that  the  bonds 
of  matrimony  heretofore  existing  between  the  plaintiff  and 
defendant  be  and  they  hereby  are  dissolved  absolutely.  If 
the  defendant  were  clearly  an  American  citizen  we  should 
apply  the  statute  -^  which  prohibits  remarriage  by  the  guilty 
spouse.  But  as  it  is,  we  shall  not  attempt  to  impose  that 
restriction  nor  to  require  the  payment  of  costs  by  her. 

"14  Cyc,  588,  589  notes  97,  98. 

"  Papayanni  v.  Russian  Steam  Nav.  etc.,  Co.,  ante,  p.   12. 

"  Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large, 
sess.  II   Ch.  854,  sec.  966. 

"  Act  of  Congress  of  June  6,  1900  sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  tit.  II,  sec.  467   (2). 

="  Biddle  v.  U.  S.,  ante,  p.  120. 

"  Cited  in  note  18  supra. 


UNITED  STATES  V.  ARMSTRONG,  MAY   8,   1915.  485 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  John  R.  Armstrong. 

[Cause  No.  425;  filed  May  8,  1915.] 

SYLLABUS. 
(By  the  Court.) 

1.  LIBEL:   What  Constitutes.     A  publication  which  charges  that  a 

firm  of  attorneys  received  fees  from  both  parties  to  a  cause 
in  which  they  were  employed  and  were  called  before  the  Court 
and  compelled  to  withdraw  from  said  cause  is  libelous  per  se. 

2.  Id.:  Justification.     Such  a  publication  may  be  justified  only  by 

showing  that  it  is  (1)  "true"  and  (2)  "published  with  good 
motives  and  for  justifiable  ends." 

3.  Id.  :  Malice.     The  second  element  of  justification  is  not  established 

where  the  evident  purpose  of  the  publication  is  to  injure  the 
parties  referred  to  in  their  business. 

4.  Id.:    Evidence  aliunde   is   admissible  to   show  what  parties  were 

intended  if  the  publication  is  at  all   ambiguous  on  that  point. 

5.  Id.:  Justification:   Onus  Probandi.     The  burden  rests  upon  de- 

fendant to  show  both  elements  of  justification. 

6.  Id.  :    Id.  :    Evidence  reviewed  and  found  insufficient  to  show  that 

the  charge  in  question  is  either  "true"  or  "published  with  good 
motives  and  for  justifiable  ends." 

Earl  B.  Rose,  Esq.,  Acting  and  Special  Dist.  Atty.,  for  the 
prosecution. 

H.  D.  Rodger,  Esq.,  for  the  defense. 

Lobingier,  J.: 

This  is  a  prosecution  for  libel.  The  defendant,  who  is 
the  manager  of  a  concern  known  as  "The  International 
Detective  Agency,"  admits  (pp.  190-195)^  that  he  drafted 
a  statement  (Ex.  p.  1)  reading  as  follows: 

"Crooked. 

Fleming  &  Davies  was  caught  taking  money  from  both  Plaintiff 
and  Defendant  agents  in  a  Mixed  Court  case  Woo  Kien  Kwung 
Plaintiff  and  Woo  Cho  Tsai  Defendant.  Fleming  &  Davies  was 
called  before  the  U.  S.  Court  for  China  by  Judge  Holcomb,  and 
U.  S.  Court  ordered  Fleming  &  Davies  to  retire  from  the  case.  The 
receipts  from  both   Plaintiff  and   Defendant   agents  can  be  seen   at 

'  References  are  to  Reporter's  Note  Books. 


486  I  EXTRATERRITORIAL  CASES. 

48   Kiang'se   Rd.    International    Detective    Agency   or    at   Judge    Hol- 
comb's  office   at   Hongkong  Rd." 

He  further  admits  that,  under  his  direction,  this  state- 
ment was  translated  into  Chinese  and  printed  in  that  lan- 
guage in  the  form  of  a  circular  (Ex.  A),  copies  of  which 
were  mailed  to  "about  one  hundred  and  thirty-five  *  *  * 
business  men  and  firms  of  all  nationalities  of  Shanghai" 
(Ex.  R).  A  translation  (Ex.  B)  of  the  circular  into 
English  was  introduced  in  evidence  and  reads  as  follows : 

"Never  never  read  this. 

Lawyer  Leeming  received  fees  from  both  parties  to  a  suit.  The 
Plaintiff  was  by  the  name  of  Woo  Kien  Kwung  of  Avenue  Paulun 
and  Defendant  by  the  name  of  Woo  Tsoh  Che  of  "Ku-ban"  Road. 
Subsequently  Lawyer  Leeming  was  summoned  by  Lawyer  Ho  Chin 
Kung  to  the  United  States  Court  to  make  explanations.  The  United 
States  Court  then  directed  that  henceforth  this  matter  shall  be  no 
concern  of  yours. 

The  receipts  for  the  fees  received  from  both  parties  can  be  (in- 
spected) at  the  International  Detective  Agency,  48  Kiangse  Road, 
or  Ho  Chin  Kung's  office  at  Hongkong  Road." 

The  circular  was  unsigned  and  contained  no  hint  of  its 
authorship  but  defendant  now  accepts  the  sole  responsibil- 
ity therefor.  Its  reference  to  "Lavvyer  Leeming"  render's 
evidence  alhmde  admissible  to  show  who  is  meant.-  Such 
evidence  was  off"ered  (pp.  316,  337),  to  the  effect  (and 
it  is  not  seriously  disputed)  that  the  circular  refers  to 
Messrs.  Fleming  &  Davies,  a  firm  of  attorneys  practicing 
in  Shanghai,  and  members  of  the  bar  of  this  Court. 

That  such  a  publication  is  libelous  pei-  se  has  not  been 
questioned.     Libel  has  been  defined  as 

"Any  published  writing  that  imputes  criminal  or  dishonest  con- 
duct to  another,  or  that  tends  to  disgrace  him  and  bring  him  into 
hatred,  contempt  or  ridicule."  ^ 

In  the  case  of  a  lawyer,  whose  reputation  for  fidelity 
to  his  clients  is  the  most  important  part  of  his  capital,  a 
statement  implying  that  he  has  represented  adverse  in- 

'  Worcester  v.  Ocampo,  22  Phil.,  86,  87;  Russell  v.  Kelly,  44  Cal., 
641. 

=•  Bailey  v.  Holland,  7  App.  Cas.  (D.  C),  189.  Cf.  White  v. 
Nicholls,  3  How   (U.  S.),  266;   11  L.  ed.,  591. 


UNITED  STATES  V.  ARMSTRONG,  MAY   8,   1915.  487 

terests  or  otherwise  proven  false  to  his  trust  is  peculiarly 
actionable/ 

At  common  law  the  truth  of  the  matter  contained  in  a 
libelous  publication  was  no  defense;  indeed  it  was  not  even 
received  in  evidence.^  The  maxim  current  in  the  books  ^ 
was  "the  greater  the  truth  the  greater  the  libel."     It  was 

"immaterial,"  says  Dr.  Bishop '  "whether  the  libelous  words  are  true 
or  false.  Their  effect  on  the  public  and  individuals  was  supposed 
to  be,  and  perhaps  it  is,  the  same  in  either  case." 

For  this  extraterritorial  jurisdiction,  however,  Congress 
has  changed  the  common  law  rule  by  providing  as  follows : 

"Any  publication  of  a  libel  shall  be  justified  if  it  appear  that  the 
matter  charged  as  libelous  was  true  and  was  published  with  good 
motives  and  for  justifiable  ends." ' 

The  defense  in  this  case  is  that  the  statements  in  the 
publication  first  above  quoted  are  true.  It  will  be  seen, 
however,  that,  according  to  the  provision  just  referred  to, 
that  alone  would  not  be  sufficient,  for,  as  was  said  in 
construing  a  similar  statute,  "the  alleged  libelous  matter 
must  not  only  be  proved  to  be  true,  in  order  to  constitute 
a  defense,  but  it  must  be  proved  that  it  was  published  both 
with  good  motives  and  for  justifiable  ends."  '-^  The  statute, 
as  we  have  seen,  is  in  derogation  of  the  common  law;  i.  e., 
it  provides  a  defense  where  none  previously  existed,  and 
it  must,  therefore,  be  strictly  construed  and  both  elements 
of  the  defense  must  be  established.  We  may  then  inquire 
first  whether  the  circulars  in  question  were  published  and 
distributed  "with  good  motives  and  for  justifiable  ends." 

A  statement  (Ex.  R)  signed  by  the  defendant  in  the 
presence  of  two  witnesses  recites  that  he  "committed  this 

*Chipman  v.  Cook,  2  Tyler  (Vt.),  456;  Mosnat  v.  Snyder,  105  la., 
500,  75  N.  W.,  356;  Ludwig  v.  Cramer,  53  Wis.  193,  10  N.  W.,  81. 

°  Com.  V.  Chapman,  13  Mete.  (Mass.),  75;  Com.  v.  Snelling,  15 
Pick.   (Mass.),  341;  State  v.  Putnam,  53  Or.  266,  100  Pac,  2. 

°  See  an  article  in  the  American  Law  Review,  XLIX,  200.  Cf.  9 
English  Ruling  Cases,  193. 

'  New  Criminal  Law,  II,  sec.  918. 

'  Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  sess. 
II,  Ch.  854,  sec.  817.  To  the  same  effect  is  Act  of  Congress  of  March  3, 
1899,  30  U.  S.  Stats,  at  Large,  sess.  Ill,  Ch.  429,  tit.  I,  sec.  205. 

'  U.  S.  V.  Ocampo,  18  Phil.  55,  affirmed,  234  U.  S.  91,  58  L.  ed.  1231. 


488  I  EXTRATERRITORIAL  CASES. 

act  or  acts  in  the  spirit  of  revenge  with  the  intention  of 
injuring  and  defaming  William  S.  Fleming  and  James  B. 
Davies."  Testifying  later  in  his  own  behalf  defendant 
stated:  "I  never  would  have  signed  it  if  I  had  known  it 
was  there."  He  does  not,  however,  deny  the  testimony 
(p.  373)  of  a  witness  to  the  paper  that  it  was  read  over 
to  him  before  signing.  The  objection  to  said  exhibit  on 
the  ground  that  defendant  was  not  cautioned  that  it  might 
be  used  against  him  is  untenable.  Such  a  rule  has,  indeed, 
been  established  in  some  jurisdictions  by  statute  but  there 
is  none  such  here  and  the  only  requirement  is  that  the 
signature  should  not  have  been  obtained  by  force,  violence 
or  intimidation,  nothing  of  which  is  claimed  in  this  case. 

Moreover,  aside  from  the  paper  itself,  there  is  evidence 
of  similar  verbal  statements  by  defendant,  of  his  own  accord. 
Thus  the  ol!icer  who  assisted  in  the  search  of  the  defend- 
ant's premises  and  who  made  the  arrest  testifies  (p.  56) 
that  defendant  stated  that  he  caused  the  publication  in  order 
to  injure  complainants,  while  another  witness  (Richards, 
p.  368)  declares  that  defendant  stated  that  "he  wanted  to 
get"  them  "put  them  out  of  business"  and  "run  them  out  of 
the  country." 

The  defendant  in  testifying  admits  that  he  is  unfriendly 
to  the  principal  complainant  and  states  that  he  wanted 
"to  let  the  public  know  how  he  was  doing  business."  But 
if  the  purpose  had  been  merely  to  bring  to  the  attention 
of  the  public  the  fact  that  defendant  had  a  grievance,  or 
wished  to  make  a  charge,  it  would  hardly  have  been  neces- 
sary to  do  so  anonymously  nor  to  have  concealed  all  marks 
indicating  from  whom  the  charge  emanated.  His  counsel 
frankly  states  (Brief  p.  24)  that  he  "does  not  commend 
the  secret  manner  in  which  the  defendant  does  this."  It 
appears  that  complainants  have  a  large  Chinese  clientele 
and  the  employment  of  that  language  and  of  such  a  means 
indicates  a  purpose  to  injure  them  with  prospective  clients 
and  to  do  so  in  such  a  way  as  to  give  no  opportunity  for 
defense  nor  to  show  who  made  the  charge,  nor  upon  what 
it  might  be  based.  Moreover,  even  if  we  were  to  accept 
defendant's  claim  that  he  merely  wished  to  warn  the  public 
it  would  not  meet  the  requirement  of  "good  motives  and 


UNITED  STATES  V.  ARMSTRONG,  MAY   8,   1915.  489 

for  justifiable  ends."  Such  a  purpose  was  claimed,  and 
with  much  more  reason,  in  leading  Massachusetts  cases 
where  the  defendants  were  nevertheless  convicted.  In  the 
earlier  of  these  ^°  Chief  Justice  Shaw  said : 

"It  is  not  necessary,  to  render  an  act  malicious,  that  the  party 
be  actuated  by  a  feeling  of  hatred  or  ill-will  towards  the  individual, 
or  that  he  entertain  and  pursue  any  general  bad  purpose  or  design. 
On  the  contrary,  he  may  be  actuated  by  a  general  good  purpose, 
and  have  a  real  and  sincere  design  to  bring  about  a  reformation  of 
manners;  but  if  in  pursuing  that  design,  he  wilfully  inflicts  a  wrong 
on  others,  which  is  not  warranted  by  law,  such  act  is  malicious. 

A  man  may,  by  his  example  and  by  his  conduct,  be  doing  great 
injury  to  society;  he  may  in  fact  be  guilty  of  the  most  ruinous 
crimes,  and  that  well  known  to  an  individual;  that  individual  may 
be  actuated  by  the  most  pure  and  single-hearted  desire  to  rid  society 
of  so  mischievous  a  character  and  entertain  the  firmest  conviction 
that  he  would  be  doing  great  good  by  it;  and  yet  it  is  very  certain, 
that  in  contemplation  of  law,  any  attempt  upon  his  life,  his  liberty, 
his  person  or  property,  made  in  the  accomplishment  of  such  a  pur- 
pose, would  be  unlawful,  and  therefore  malicious.  This  is  founded 
upon  a  principle,  essential  to  the  very  existence  of  a  government  of 
laws  and  of  civil  liberty,  that  no  man  can  be  punished  except  by 
the  operation  of  law,  and  after  a  trial  according  to  the  forms  of 
law,  with  such  aids  and  shields  as  the  rules  of  law  afford  him;  that 
individuals  cannot  take  the  execution  of  the  laws  into  their  own 
hands;  and  that  it  is  the  duty  of  every  good  citizen,  if  he  knows 
of  any  offence  against  society,  not  to  assail  the  offender,  but  to 
bring  the  matter  before  the  proper  tribunals,  for  inquiry,  trial, 
and  punishment." 

In  the  later  case  ^'  the  same  distinguished  judge  declared 
that  the  element  required  by  such  a  statute  was  not  one  of 
"malice  in  its  popular  sense,  viz.,  that  of  hatred  and  ill  will 
to  the  party  libelled,  but  an  act  done  wilfully,  unlawfully, 
and  in  violation  of  the  just  rights  of  another."  If  the 
publication  complained  of  amounts  to  such  an  act,  and  we 
think  it  does,  it  cannot  be  justified  on  the  ground  that 
its  author  was  merely  seeking  to  enlighten  the  public,  even 
if  the  surrounding  circumstances  would  permit  the  in- 
ference that  such  was  the  chief  motive. 

We  have  seen  that  if  either  of  the  elements  authorized 
by  the  statute  as  justification  is  lacking,  the  defense  must 

"Com.  v.  Snelling,  15  Pick.  337. 
"  Com.  V.  Bonner,  9  Mete.  410. 


490  I  EXTRATERRITORIAL  CASES. 

fail,  and  it  not  appearing  that  the  publication  was  made 
"with  good  motives  and  for  justifiable  ends,"  it  is  tech- 
nically unnecessary  to  consider  the  other  element  of  the 
defense,  viz.,  that  the  charge  contained  in  the  publication 
is  true.  Since,  however,  this  element  forms  the  burden 
of  counsel's  argument  and  since,  moreover,  this  is  the 
feature  which  most  concerns  the  complaining  witnesses, 
whose  professional  reputation  is  involved,  we  shall  now 
proceed  to  examine  the  evidence  for  the  purpose  of  ascer- 
taining whether  or  not  they  did  accept  fees  from  both 
parties  to  a  suit  in  which  complainants  were  employed  by 
only  one. 

It  appears  that  in  1914  a  civil  cause  was  pending  in  the 
Mixed  Court  of  Shanghai  in  which  one  Woo  Kien  Kwung 
was  plaintiff  and  Woo  Cho  Tsai  and  Woo  Lai  Sung  were 
defendants.  Thru  the  accused  in  the  case  at  bar  the  firm 
of  Fleming  &  Davies  was  employed  to  represent  said  plain- 
tiff. Mr.  Fleming  testifies  (p.  364)  that  his  original  charge 
was  two  hundred  taels;  that  subsequently  he  received  a 
partial  payment  of  one  hundred  dollars,  and  also  an  ad- 
vance of  seventy-nine  dollars  for  Court  costs ;  that  later  the 
case  was  settled,  independently  of  said  attorneys,  and  that 
they  agreed  to  accept  fifty  dollars  in  lieu  of  the  balance  of 
their  fee,  which  sum  was  paid  to  Mr.  Fleming,  in  plaintiff's 
behalf,  by  one  Chang  Ah  Zeh,  to  whom  the  following 
receipt  (Ex.  G)  was  given: 

"Shanghai,  Oct.  16th,  1914. 

Received  of  Mr.  Chang  Ah  Zeh  the  sum  of  Fifty  Dollars  on  ac- 
count of  Wu  Kien  Kwung  in  full  settlement  of  balance  of  fees  due 
from  the  said  Wu  Kien   Kwung  for  professional   services  rendered. 

$50.00  (Sgd.)     Fleming  &  Davies." 

It  is  this  item  of  fifty  dollars  which  forms  the  basis  of 
the  present  defendant's  charge,  his  claim  being  that  the 
amount  actually  came  from  the  defendants  in  the  Mixed 
Court  case.  If  that  were  true,  the  most  satisfactory  evi- 
dence thereof  would  have  been  that  of  said  defendants 
themselves;  yet  they  were  not  called  as  witnesses  by  the 
defense  in  this  case,  nor  was  any  explanation  given  for 
failing  to  call  them.     One  of  them   (Woo  Lai  Sung)   was 


UNITED  STATES  V.  ARMSTRONG,  MAY   8,   1915.  491 

called,  however,  on  behalf  of  the  prosecution  and  testified 
(p.  193)  that  he  had  never  authorized  the  payment  of  any 
money  to  Mr.  Fleming  and  had  never  said  that  he  had  done 
iso  (p.  194).  The  witness  further  stated  (p.  193)  that 
the  other  Mixed  Court  defendant  (Woo  Cho  Tsai)  had 
been  bed-ridden  for  twenty  years  at  the  time  of  the  trial; 
but  his  son,  Woo  Lai  Ding  was  called  by  the  prosecution 
and  testified  (p.  220)  that  he  likewise  had  never  paid,  or 
authorized  the  payment  of,  money  to  Mr.  Fleming.  It 
would  thus  appear  that  the  latter's  positive  denial  of  ac- 
cepting fees  from  said  defendants  receives  corroboration 
from  them. 

It  is  not  claimed,  however,  and  no  evidence  has  been 
offered,  that  they  themselves  actually  made  or  authorized 
any  such  payment.  The  most  that  is  claimed  in  the  present 
defense  is  that  Chang  Ah  Zeh,  who  actually  handed  the 
fifty  dollars  to  the  complaining  witness,  represented  said 
defendants.  Chang  Ah  Zeh  himself  testified  (p.  398),  how- 
ever, that  he  paid  the  fifty  dollars  at  the  instance  and 
request  of,  and  as  an  advance  to,  one  Woo  Sze  Ching,  son 
of  the  Mixed  Court  plaintiff  who,  according  to  the  latter 
(p.  94)  had  active  charge  of  his  interests,  he  being  elderly 
and  infirm.  There  is  no  contradiction  of  Mr.  Fleming's 
testimony  to  the  effect  that  the  balance  of  his  fee  due  from 
plaintiff  had  not  been  paid  and  Woo  Sze  Ching  admits 
(p.  36)  prior  negotiations  with  Chang  Ah  Zeh  for  a  loan. 

Woo  Sze  Ching  testifies  (p.  20)  that  he  never  authorized 
Chang  Ah  Zeh  to  pay  the  money  to  Mr.  Fleming  but  he 
admits  that  he  had  learned  of  the  payment  from  one  Ma 
Lai  Ching  who  testifies  (p.  145)  that  he  was  present  when 
the  payment  was  made.  He  further  testifies  (p.  26)  that 
he  never  said  that  Mr.  Fleming  had  taken  fees  from  both 
sides  and  on  cross-examination  (p.  58)  he  admits  that  he 
did  say  that  Chang  Ah  Zeh  had  paid  the  fifty  dollars 
for  him,  which  statement  he  repeated  to  the  District  At- 
torney who  says  that  Woo  Sze  Ching  laughed  at  the  con- 
trary claim.  The  latter  denies  (p.  22)  that  he  was  present 
at  Mr.  Fleming's  office  when  the  money  was  paid,  but  he  is 
contradicted  not  only  by  Mr.  Fleming  but  by  three  other 


492  I  EXTRATERRITORIAL  CASES. 

Chinese  witnesses,  Chang  Ah  Zeh  (p.  392),  Y.  C.  Nyi  (p. 
66)  and  Ma  Lai  Ching  (p.  145)  who  testified  not  only  that 
he  was  present  but  that  he  sanctioned  the  payment  as  made 
in  his  behalf.  There  are,  indeed,  certain  discrepancies 
between  the  testimony  of  these  various  witnesses  as  to 
minor  circumstances  but  these  at  least  negative  the  idea 
of  collusion  between  them  and  do  not  relate  to  the  material 
fact  of  payment  in  plaintiff's  behalf. 

It  may,  however,  be  observed  on  this  point  that  even 
if  we  were  to  accept  the  statement  that  such  payment  was 
not  authorized,  in  preference  to  Chang  Ah  Zeh's  testimony 
that  it  was,  this  would  at  most  show  no  more  than  that 
the  payment  did  not  emanate  from  the  plaintiff;  it  would 
not,  especially  in  view  of  their  disclaimer,  prove  that  the 
payment  came  from  the  defendants  in  the  Mixed  Court 
case;  and  if  Chang  Ah  Zeh  paid  the  money  in  his  own 
behalf  (which  must  have  been  the  case  if  he  did  not  pay 
it  on  behalf  of  either  plaintiff  or  defendants)  it  would  con- 
stitute no  proof  whatever  of  the  charge  made  against  the 
complaining  witnesses  in  the  publication  complained  of. 

Defendant's  counsel  summarizes  his  other  evidence  as 
follows : 

"Leon  Crowell,  an  absolutely  disinterested  witness,  testified  that 
Chang  Ah  Zeh  told  him  that  the  $50  was  paid  on  behalf  of  his 
people'  meaning  the  defendants  in  the  Mixed  Court  action.  This 
testimony  is  corroborated  by  three  other  witnesses  Mr.  Armstrong, 
Kwok  Yong  Loong,  who  translated  for  Mr.  Armstrong  in  all  these 
matters,  and  Sung  Ah  Loo  who  as  Mr.  Armstrong's  clerk  and  de- 
tective had  full  knowledge  of  this  matter." 

But  Crowell  also  stated  "I  don't  know  whether  he  said 
'his  people;*  that  is  iTiy  way  of  getting  his  meaning;  the 
expression  was  for  his  side  of  the  case,"  which  was  quite 
consistent  with  Chang  Ah  Zeh's  testimony  that  he  paid 
at  plaintiff's  instance.  Again  Sung  Ah  Loo  stated  specif- 
ically and  repeatedly  that  Chang  Ah  Zeh  did  not  say  for 
whom  he  paid  the  $50,  while  Kwok  Yong  Lung  claims 
merely  that  the  former  said  he  paid  it  for  "his  defendants," 
which  seems  neither  probable  nor  satisfactory.  Besides 
it  was  only  thru  the  last  witness  that  defendant,  if  not 
Crowell,    talked    with    Chang    Ah    Zeh    and    the    latter's 


UNITED  STATES   V.  ARMSTRONG,  MAY   8,    1915.  493 

answers,  as  they  reached  the  others,  were  actually  those 
of  Kwok  Yong  Lung. 

But  if  it  were  really  true  that  Chang  Ah  Zeh  said  that 
he  paid  the  money  in  behalf  of  the  Mixed  Court  defendants 
it  would  afford  no  competent  evidence  here  that  he  did 
so  pay  it.  For  such  a  statement  would  be  mere  hearsay, 
not  being  under  oath  nor  subject  to  cross-examination.^^ 
And  when  Chang  Ah  Zeh  did  testify  under  oath  and  subm.it 
to  cross-examination  he  not  only  denied  making  such  state- 
ments but  declared,  as  has  been  seen,  that  he  paid  the  money 
in  plaintiff's  behalf. 

Much  of  defendant's  argument  is  devoted  to  other  phases 
of  the  Mixed  Court  case — the  advisability  of  settling  it, 
the  relations  between  complainants  and  the  present  defend- 
ant, and  the  question  whether  the  latter  was  fairly  treated 
by  the  for.rer.  But  such  questions  are  not  involved  here 
and  no  formal  complaint  embodying  them  has  ever  been 
presented.  The  only  phase  of  the  Mixed  Court  case  which 
is  properly  before  us  is  that  which  touches  the  payment 
of  the  $50,  the  evidence  concerning  which  has  just  been 
reviewed. 

It  is  urged  that  the  accused,  in  publishing  the  state- 
ments complained  of,  merely  repeated  what  had  been  told 
him  and  what  he  in  good  faith  believed.  But  under  the 
law  of  libel  this,  even  if  true,  would  not  relieve  him.  As 
was  said  in  a  similar  case  by  Chief  Justice  Shaw : 

"How  is  this  defence  to  be  made?  By  proof  of  the  truth  of  the 
matter,  charged  as  libellous;  not  his  belief  of  the  truth,  not  his  in- 
formation, nor  the  strength  of  the  authority  upon  which  such  belief 
was  taken  up."" 

The  charge  in  question,  too,  must  be  understood  as  one 
that  the  complainants  had  knoivingly  accepted  fees  from 
both  sides.  No  one  would  infer  from  reading  the  publica- 
tion that  its  author  meant  to  say  that  they  had   taken 

^'^  Wigmore,  Evidence  II,  sec.  1361  et  seq. 

"Com.  V.  Snelling,  15  Pick.  (Mass.),  342.  Cf.  Com.  v.  Bonner, 
9  Mete.  (Mass.),  410.  "The  want  of  actual  intent  to  vilify  is  no 
excuse  for  a  libel;  and  if  a  man  deems  that  to  be  right  which  the 
law  pronounces  wrong,  the  mistake  does  not  free  him  from  guilt. 
(1  Bishop,  Criminal  Law,  sec.  309;  Rejmolds  v.  U.  S.,  98  U.  S.  145, 
25  L.  ed.  244)"  U.  S.  v.  Dick,  30  Phil.,  80;  13  Off.  Gaz.  778. 


494  I  EXTRATERRITORIAL  CASES. 

money  innocently,  supposing  that  it  had  come  from  their 
own  client.  If  such  had  been  the  intended  meaning,  there 
would  have  been  no  reason  whatever  for  printing  or  dis- 
tributing the  circular.  The  charge  that  these  complainants 
accepted  money  from  both  sides  must  be  treated  as  a 
charge  that  they  did  so  in  full  knowledge  of  all  the  facts, 
and  it  does  not  relieve  the  author  of  the  charge  to  say 
that  he  had  information  that  it  had  been  so  paid  in  such 
a  way  that  complainants  might  not  have  known  the  source 
of  payment. 

Finally,  it  must  not  be  overlooked  that  the  charge  in 
the  publication  complained  of  is  not  merely  that  of  taking 
fees  from  both  parties  to  a  cause;  for  both  the  original 
English  version  and  the  translation,  state  in  effect  that 
the  complainants  were  formally  summoned  before  this 
Court  and  compelled  to  withdraw  from  the  case.  Such 
is  the  inference  which  the  ordinary  reader  would  draw 
from  the  publication;  yet  no  proof  is  offered  in  support 
of  it  and  no  pretense  made  that  it  is  true.  To  say  of  a 
practicing  lawyer  that  he  has  been  called  before  the  Court 
from  which  his  authority  derives  and  compelled  to  with- 
draw from  a  case  is,  of  itself,  a  libelous  imputation  and 
in  this  instance  there  is  no  attempt  to  justify  it. 

The  fundamental  error  of  the  defendant's  argument  is 
the  assumption  that  the  burden  rests  on  the  prosecution  to 
prove  that  the  charge  complained  of  was  false.  The  pros- 
ecution's only  burden  is  to  prove  the  publication,  which 
in  this  case  is  admitted,  and  its  libelous  character,  which 
is  here  self-evident.  The  burden  of  justification  by  prov- 
ing that  the  charge  is  "true  and  was  published  with  good 
motives  and  for  justifiable  ends"  necessarily  rests  upon 
the  defendant  ^*  for  it  is  purely  a  matter  of  defense.     In 

^*  California:  Hearne  v.  De  Young,  119  Cal.,  670. 

Massachusetts:  Com.  v.  Bonner,  9  Mete,  410. 

Philippines:  U.  S.  v.  Ocampo,  18  Phil.,  54;  (affirmed,  234  U.  S. 
91,  58  L.  ed.,  1231);  U.  S.  v.  Prautch,  10  Phil.,  562;  U.  S.  v.  Ortiz, 
8    Phil.,   753. 

Defendant's  counsel  cites  no  case  holding  the  contrary.  Some  of 
his  authorities  are  to  the  effect  that  the  truth  of  the  publication  is 
a  sufficient  defense;  but  this  is  by  virtue  of  statutory  provisions 
which  are  not  in  force  in  this  jurisdiction,  and  even  these  do  not 
change  the  rule  as  to  the  burden  of  proof. 


ALLEN  V.  ALLEN,  JUNE  10,  1915.         495 

our  judgment  the  accused  has  not  met  that  burden ;  he 
has  not  even  produced  competent  evidence  from  which  we 
could  find  that  the  charges  made  in  the  publication  com- 
plained of  are  true.  We  must  accordingly  find  that  justifi- 
cation has  not  been  shown  and  that  the  defendant  is  guilty 
of  the  crime  of  libel. 

The  statutes  ^^  prescribing  the  penalty  for  this  offense 
provide  for  both  fine  and  imprisonment.  But  the  accused 
was  once  before  convicted  by  this  Court  of  a  similar 
offense  ^^  and  the  punishment  was  limited  to  a  fine,  which 
was  evidently  not  effective.  Besides,  the  repetition  of  the 
offense  is  in  itself  an  aggravating  circumstance  requiring 
a  severer  penalty.  In  view  of  this  and  of  the  manner 
in  which  the  offense  was  committed  we  feel  that  nothing 
short  of  a  term  of  imprisonment  will  suffice. 

The  accused  is  accordingly  sentenced  to  two  years  of 
imprisonment,  to  be  served  in  the  prison  for  American 
convicts  at  Shanghai,  China,  until  due  provision  is  made 
for  his  lawful  incarceration  elsewhere,  and  to  pay  the  costs 
of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

John  Thomas  Allen,  Petitioner,  v.  Susan  Allen,  Re- 
spondent, Abraham  Houston,  Co-respondent. 

[Cause   No.   435;    filed   June    10,   1915.] 

SYUABUS. 

(By  the  Coiirt.) 

1.  DIVORCE:    ADULTERY:    DEGREE   OF   Proof.     A   charge   of   adultery 

cannot  ordinarily  be  established  by  the  denied  and  uncorrobor- 
ated testimony  of   a   single  witness. 

2.  Id.  :  Id.  :  Evidence  reviewed  and  found  insufficient  to  sustain  such 

charge  in  the  case  at  bar. 

3.  Id.  :   Residence.     Where  a  petitioner  in  a  divorce  action  has  the 

residential  qualification  the  Court  has  jurisdiction  to  grant  af- 

''  Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  sess. 
II,  Ch.  854,  sec.  815.  Cf.  Act  of  March  3,  1899,  31  U.  S.  Stats,  at 
Large,  sess.  Ill,  Ch.  429,  tit.  I,  sec.  30. 

"U.  S.  V.  Armstrong,  Criminal  cause  No.  93. 


496  I  EXTRATERRITORIAL  CASES. 

firmative  relief  upon  a  cross-bill  filed  by  a  respondent  who  is 
without  such  qualification. 
4.  Id.  :    Alimony.     Allowance   of   alimony   to   the   extent   of   approxi- 
mately one-third  of  a  husband's  earnings  held  not  unreasonable 
and  counsel  fee  awarded  in  accordance  with  acts  of  Congrress. 

Arthur  S.  Allan,  Esq.,  for  petitioner. 
Joseph  W.  Rice,  Esq.,  for  respondent. 

LOBINGIER,  J.: 

This  is  an  action  for  divorce  on  the  ground  of  adultery. 
The  marriage  between  the  parties  on  April  6,  1911,  is  un- 
disputed and  the  petition  charges  that  respondent  has  been 
found  several  times  in  a  conpro  nising  position,  the  first 
time  within  less  than  six  months  after  the  marriage.  Each 
of  these  alleged  compromising  acts  is  vigorously  denied 
by  the  respondent  and  to  none  of  them  is  there  more  than 
one  witness,  that  to  the  first  being  the  petitioner  himself 
and  the  witnesses  to  the  other  two  being  respectively  a 
Chinese  house  boy  who  has  worked  for  respondent  and  a 
Chinese  amah  employed  in  a  house  where  respondent  lived. 
It  is,  to  say  the  least,  quite  unusual  to  base  a  finding  of 
adultery  on  the  testimony  of  a  single  witness  thus  denied.^ 
The  doctrine  laid  down  in  a  work  of  authority  is  as  follows : 

"The  proof  of  adultery  as  a  ground  for  divorce  must  be  clear 
and  positive  *  *  *  The  court  will  carefully  weigh  the  evidence, 
taking  into  consideration  its  inherent  probability,  the  credibility  of 
the  witnesses,  and  the  character  of  the  evidence  offered  by  the  ac- 
cused in  denial  or  explanation;  and  if  so  considered  the  evidence 
of  guilt  is  inconclusive  a  divorce  will  be  denied."  ^ 

Unless,  therefore,  corroborating  circumstances  are  found 
to  supplement  the  testimony  of  each  of  these  witnesses 
concerning  the  act  claimed  to  have  been  witnessed,  the 
testimony  here  would  not  justify  us  in  granting  a  decree 
for  petitioner.  As  to  the  first  incident,  alleged  to  have 
occurred  in  Vallejo,  California,  we  do  not  think  it  can  be 


'Scheming  v.  Scheffling,  44  N.  J.  Eq.  438,  15  Atl.  577;  Main  v. 
Main  (N.  J.  Ch.  1892)  24  Atl.  1024;  Larrison  v.  Larrison  20  N.  J. 
Eq.  100. 

'U  Cyc,  692. 


ALLEN  V.  ALLEN,  JUNE  10,  1915.  497 

said  that  such  circumstances  appear.  The  petitioner 
does  not  even  show  by  any  evidence,  other  than  his  own, 
that  he  ever  had  the  venereal  disease  which  he  claims 
to  have  contracted  from  his  wife  and  the  state  of  the 
evidence  is  merely  one  of  assertion  on  his  part  and  denial 
on  hers  and  this  state  extends  to  the  time  when  peti- 
tioner ceased  to  provide  support  for  respondent,  he  claiming 
that  this  began  upon  the  discovery  of  her  alleged  un- 
faithfulness while  she  states  that  it  did  not  begin  until 
long  after.  The  letters  (Exhibits  1-7)  corroborate  re- 
spondent on  this  point  since  they  purport  to  have  been 
written  by  petitioner  long  after  the  time  of  said  alleged 
occurrence  and  not  only  contain  no  mention  of  it  but  their 
tone  and  contents  are  quite  inconsistent  with  such  an 
occurrence. 

The  petitioner  indeed  denies  the  genuineness  of  these 
letters,  but  it  requires  quite  a  stretch  of  the  imagination 
to  induce  the  belief  that  respondent  could  have  caused 
the  fabrication  of  so  many  different  letters,  had  them 
mailed  from  various  ports  where  petitioner  is  known  to 
have  been  and  foreseen  so  long  ago  and  the  bringing  of  this 
action  in  which  alone  such  letters  are  of  any  great  im- 
portance to  her.  Moreover  the  signatures,  especially  that 
of  Ex.  4,  strongly  resemble  the  signature  to  the  petition 
which  petitioner  admits  is  his. 

As  to  the  other  charges  we  do  not  think  the  testimony  of 
the  Chinese  houseboy  that  the  co-respondent,  Houston,  spent 
the  night  at  defendant's  house,  or  the  testimony  of  the 
amah  that  he  spent  another  night  in  her  room  is  any 
more  strongly  corroborated.  The  fact  that  she  once  wrote 
a  note  to  Houston  and  may  have  inquired  for  him  at  the 
Astor  House  bar  is  explained  by  her  on  the  ground  that 
she  was  trying  to  open  a  restaurant  and  desired  to  have 
Houston's  assistance  in  obtaining  the  patronage  of  colored 
sailors,  and  the  fact  that  the  latter,  as  petitioner  himself 
admits,  gave  or  attempted  to  give  the  letter  to  petitioner 
shows  that  there  was  no  effort  at  secrecy  and  strongly 
indicates  the  innocent  character  of  the  transaction.  The 
respondent's  landlady  testifies  that  it  would  have  been 

14008  O.  W. 32 


498  I  EXTRATERRITORIAL  CASES. 

practically  impossible  for  anyone  to  have  entered  her  house 
and  remained  there  on  the  night  in  question  without  her 
knowing  it,  and  both  she  and  two  other  ladies  who  knew, 
and  were  more  or  less  associated  with,  respondent  during 
the  said  period  testified,  without  objection,  to  her  exem- 
plary conduct  at  that  time.  They  also  (one  of  them  a 
medical  missionary)  testified  to  a  state  of  ill-health  on 
the  part  of  respondent  which  would  make  it  improbable 
that  she  would  either  desire,  or  be  sought  for,  any  such 
relations  as  she  is  charged  with  maintaining,  especially 
with  a  man  so  much  her  junior  as  Houston.  It  seems 
to  us  much  more  consistent  with  the  circumstances  to 
accept  his  explanation  that  he  merely  called  to  see  her 
on  two  or  three  occasions  in  order  to  help  an  older  and 
needy  woman  of  his  own  race  who  was  trying  to  supply 
for  herself  the  subsistence  which  her  husband  had  refused 
to  provide. 

We  have  not  overlooked  the  Scotch  doctrine  ^  discussed 
by  Mr.  Bishop,  but  until  a  full  report  thereof  is  available 
it  would  seem  dangerous  to  attempt  any  application  of  it. 
It  is  an  old  adage  that  a  chain  is  no  stronger  than  its 
weakest  link  and  if  it  be  the  rule,  as  appears  above,  that 
the  testimony  of  a  single  witness,  denied  and  uncor- 
roborated, is  insufficient  to  prove  a  specific  act  of  adultery, 
it  would  seem  hazardous  to  uphold  three  such  insufficiently 
proved  charges. 

In  the  case  at  bar  we  are  of  the  opinion  that  the  re- 
spondent's testimony,  corroborated  by  the  letters,  quite 
overcomes  petitioner's  testimony  as  to  his  first  charge ;  and 
that  the  uncorroborated  statements  of  the  Chinese  houseboy 
and  amah,  each  relating  to  a  different  occasion,  are  more 
than  overbalanced  by  respondent's  testimony,  corroborated 
as  it  is  by  her  landlady  and  by  the  testimony  of  two  others 
regarding  her  condition  and  conduct.  Indeed,  if  petitioner 
would  not  hesitate  to  deny  his  own  signature,  as  seems  to 
have  been  the  case,  we  could  hardly  expect  him  to  be  more 
scrupulous  in  obtaining  the  testimony  of  the  two  Chinese. 
We  must  therefore  find  that  the  charges  of  adultery  are  not 
sustained  by  the  evidence. 


Walker  v.  Fraser,  9  Scotch  Sess.  Cas.,  3rd  ser.,  1091,  1092. 


ALLEN  V.  ALLEN,  JUNE  10,  1915.  499 

II. 

Respondent  files  a  cross-bill  asking  for  a  divorce  on  the 
ground  of  desertion,  which  ground  is  expressly  admitted 
in  the  reply.  If  she  were  seeking  this  relief  as  an  original 
petitioner  we  should  be  disposed  to  deny  it  on  the  ground 
that  she  has  not  proved  a  two  years'  residence  within  the 
jurisdiction  as  required  by  what  appears  to  be  the  latest 
Congressional  enactment  *  on  the  subject.  But  petitioner's 
residence  for  a  much  longer  period  is  expressly  admitted 
and  is  otherwise  proved,  and  the  rule  is  that 

"a  statute  making  residence  of  plaintiff  a  prerequisite  to  the  exer- 
cise of  divorce  jurisdiction  does  not  preclude  a  non-resident  defend- 
ant from  filing  a  cross-bill  and  obtaining  a  decree  of  divorce  against 
plaintiff." " 

We  must  therefore  hold  that  we  have  jurisdiction  to  grant 
the  relief  sought  by  respondent  and  find  that  she  is  entitled 
thereto. 

Respondent  also  prays  in  her  cross-bill  for  an  allowance 
of  alimony  and  counsel  fee  in  defending  this  action.  Peti- 
tioner, who  is  an  oiler  in  the  United  States  Navy,  is  receiving 
a  monthly  salary  of  fifty-eight  dollars  and  eleven  cents 
United  States  currency,  while  the  respondent  who  is  some- 
what elderly  and  infirm  has  been  receiving  no  support  from 
him  for  a  considerable  time.  Under  such  circumstances 
we  do  not  consider  an  allowance  of  twenty  dollars  United 
States  currency  per  month  as  alimony  and  fifty  dollars 
Mexican  currency  as  counsel  fee  unreasonable,  especially 
in  view  of  the  acts "  of  Congress  which  expressly  provide 
for  such  allowance,  even  before  decree. 

It  is  accordingly  considered  and  decreed  that  petitioner's 
prayer  for  divorce  be  denied  at  his  costs,  but  that  a  decree 
of  divorce  a  mensa  et  thoro  be,  and  the  same  is  hereby, 
granted  to  the  respondent,  Susan  Allen,  from  the  petitioner, 
John  Thomas  Allen,  neither  party,  however,  being  per- 

*Act  of  March  2,  1903,  Sess.  II,  32  U.  S.  Stats,  at  Large,  Ch. 
978,  sec.  2,  p.  944. 

'  14  Cyc,  589. 

'31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  975;  Id.  Sess.  I, 
Ch.  786,  Tit.  II,  sec.  471. 


500  I  EXTRATERRITORIAL  CASES. 

mitted  to  remarry,  and  that  the  said  petitioner  be  required 
to  pay  the  said  respondent  as  alimony  the  sum  of  twenty 
dollars  United  States  currency  monthly,  beginning*  with  the 
present  month  of  June,  1915,  and  that  in  addition  he  pay  to 
the  attorney  of  record  for  the  said  respondent  in  this  cause 
a  counsel  fee  of  fifty  dollars  Mexican  currency,  and  pay  the 
costs  of  this  action. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Henry  P.  Newman's  Mandchurische  Export  Gesel- 
SCHAFT,  m.  b.  h.,  V.  Samuel  Zimmerman  and  Robert  H. 
Chandless,  doing  business  under  the  firm  name  and 
stjde  of  Batouieff,  Zimmerman  and  Company. 

[Cause  No.  417;  filed  June  25,  1915.] 

SYLLABUS. 
(By  the  Court) 

1.  CONTRACTS:    EVIDENCE  examined  and  found  to  show  not  one  con- 

tinuous course  of  dealing  between  the  parties  but  that  the 
contract  sued  upon  was  a  new  and  independent  one  resulting 
from  a  counter  offer  by  defendant. 

2.  Id.  :  Offer  and  Acceptance.     An  offer  may  be  accepted  by  deed 

as  well  as  by  word  and  acceptance  may  even  be  inferred  from 
silence;  hence  delivery  by  a  vendor,  following  a  written  offer 
of  purchase  by  the  vendee,  not  rejected,  will  be  treated  as  an 
acceptance  of  such  offer. 

3.  Id.:  Sale:  Quality.     The  vendor  of  commodities  intended  for  resale 

is  obliged  to  furnish  those  of  merchantable  quality. 

4.  ACTIONS:    Venue.     Sec.   4085,   U.   S.   Rev.   Stats.,  fixing  the  place 

of  trial  in  Consular  Courts,  has  been  superseded  as  regards 
this  Court  by  the  provision  in  its  organic  act  for  annual  ses- 
sions at  fixed  points  with  discretionary  power  to  hold  other 
sessions  at  any  Consulate. 

5.  Id.:  Under  said  act  the  place  of  trial  is  not  a  jurisdictional  matter. 

Messrs.  Jernigan  &  Fessenden,  by  Mr.  Fesse'ivden,  for 
plaintiff. 

Messrs.  Allen  &  Lucker,  by  Mr.  Allen,  for  defendants. 

Lobingier,  J.: 

This  is  an  action  to  recover  the  balance  due  upon  sales 
of  beans  by  the  plaintiff  to  the  defendant.     The  principal 


NEWMAN'S  COMPANY  V.  ZIMMERMAN,  JUNE  25,  1915.    501 

items  of  the  claim  are  one  of  Rs.  9,231.32  which  is  admitted 
in  the  answer  (paragraph  5)  and  another  of  Rs.  55,518.54 
which  is  disputed.  As  to  the  latter  item  the  amended 
answer  alleges: 

"In  July  1914,  the  plaintiffs  offered  100,000  pounds  of  beans  to 
the  defendant  firm  lying  at  various  points  on  the  Sungari  river. 
The  defendant  firm  by  a  letter  dated  the  20th  of  July,  1914,  agreed  to 
take  deliveiy  of  100,000  pounds  of  beans  on  the  conditions  set  out 
in  said  letter  but  the  plaintiffs  failed  forthwith  so  to  deliver,  post- 
poning delivery  from  time  to  time  till  there  came  the  declaration  of 
war  between  Russia  and  Germany  and  a  consequent  fall  of  prices  * 
*  *.  The  said  manager  of  the  plaintiff  company  thereupon  begged 
the  defendant  nevertheless  to  take  the  plaintiffs'  beans  *  *  * 
adding  that  the  parties  would  come  to  terms  thereafter  and  that  the 
defendant's  firm  should  suffer  no  loss.  The  defendant  agreed  to  take 
delivery  upon  these  conditions." 

In  its  replication  "plaintiff  further  denies  that  the  terms 
of  the  original  agreement  were  altered  as  alleged  in  para- 
graph six  of  said  answer." 

Upon  the  issue  thus  raised  evidence  was  taken  and 
the  parties  have  submitted  the  case  under  a  stipulation 
requesting  special  findings  upon  the  following  questions : 

"1.  What  was  the  original   contract  between   said  parties? 

"2.  Was  said  contract  subsequently  modified  or  substituted  by 
another? 

"3.  If  modified  then  in  what  particulars  and  to  what  extent  and 
if  substituted,  by  what  other  agreement?" 

While  Zimmerman,  one  of  the  defendants,  testifies  (p.  1) 
to  ''considerable  transactions"  between  the  parties,  that 
first  appearing  in  the  correspondence  is  evidenced  by  de- 
fendant's letter  of  April  19,  1914,  to  plaintiff  as  follows: 

"We  hereby  confirm  having  bought  from  you  thru  the  broker 
Bruecker  50,000  pood  Beans,  fair  average  quality,  at  the  price  of 
75.5  kop.  per  pood  net,  free  Barge  on  the  pristans  on  the  river 
Sungari,  however  not  lower  down  than  pristan  Sansing  and  not  less 
than  a  full  cargo  to  be  delivered  at  each  port." 

Under  date  of  May  18,  1914,  plaintiff  wrote  defendant 
as  follows: 

"We  hereby  confirm  having  sold  to  you  thru  broker  Mr.  Bruecker 
50,000  pood  Beans  good,  fair  average  quality,  crop  1913,  at  the  price 
of  75.5  kp.  per  pood  net,  franco  pristans  on  the  Sungari  at  our  option, 
but  no  lower  pristan  than  Sansing." 


502  I  EXTRATERRITORIAL  CASES. 

These  two  excerpts,  found  in  letters  written  apparently 
nearly  one  month  apart,  seem  to  involve  the  same  trans- 
action and  are  like  the  "bought  and  sold  notes"  ^  which 
figure  in  English  law  books,  practically  identical  in  terms 
except  as  to  the  clause  italicized  in  the  first.  But  as  no 
objection  is  offered  to  this  condition  by  plaintiff,  it  must 
be  assumed  that  since  delivery  thereof  was  effected  at  the 
same  time  as  the  item  now  in  dispute  (Kempner's  Ev.  pp. 
3,  4)  such  delivery  was  subject  to  said  clause. 

The  next  transaction  appears  to  be  that  evidenced  by 
letters  (Exs.  A.  &  B)  passing  between  the  parties  under  date 
of  June  10.  It  is  referred  to  as  a  "loan  of  beans"  (about 
100  carloads)  from  defendant  to  plaintiff  to  enable  the 
latter  to  fulfill  a  certain  contract  in  performing  which 
they  had  been  impeded  by  floods  (Zimmerman's  Ev.  p.  2). 
It  appears  from  said  letters  that  the  original  intention  was 
that  plaintiff  should  return  this  loan  in  kind,  but  instead 
of  so  doing,  plaintiff  (Kempner's  Ev.  p.  2)  seems  to  have 
paid  defendant  "the  full  purchase  price  of  one  hundred 
kopecks  for  the  beans."  That  transaction  was  accordingly 
completed  and  the  obligation  discharged. 

So  far  as  the  evidence  discloses,  no  further  dealings  or 
negotiations  took  place  between  the  parties  until  July  18, 
on  which  date  plaintiff  wrote  defendant  as  follows: 

"Cancelling  our  yesterday's  letter  we  herewith  beg  to  inform  you 
that  according  to  information  received  to-day,  150,000  pood  of  Beans 
are  ready  for  delivery  to  you  on  the  following  pristans,  viz. 

Pood. 

Pristan  Solodiankosa  40,000 

Pristan   Laijn   15,000 

Pristan  Jaonche  26,000 

Pristan  Ichantun 29,000 

Pristan  Sanshan  12,200 

Pristan  Zalinche  6,500 

Pristan  Liuschuchedee 7,800 

Pristan  Sintien  13,500 

Altogether   150,000 

Owing  to  the  strong  rise  of  waters  in  the  Sungari  we  request  you 
to  place  without  delay  barges  at  our  disposal  in  order  to  ship  above- 
mentioned  quantity  of  Beans."     (Ex.   C). 

'  Wong  Tsung  Wai  v.  Endicott,  ante,  p.  436. 


NEWMAN'S  COMPANY  V.  ZIMMERMAN,  JUNE  2  5,  1915.    503 

This  was  followed  by  another  letter  (Ex.  D)  two  days 
later  urging,  in  greater  detail,  the  importance  of  delivery 
and  the  dangers  of  delay;  whereupon  defendant,  under  the 
same  date,  replied  as  follows: 

"In  reply  to  your  today's  letter  we  beg  to  inform  you  that  after 
arrival  of  our  steamer,  which  is  expected  within  a  few  days,  we  shall 
dispatch  barges  to  take  delivery  of  50,000  pood  of  beans  bought  from 
you.  With  regard  to  the  remaining  100,000  pood  of  Beans  we  believe 
that,  since  we  have  done  you  a  favor,  we  ought  not  to  suffer  in  any 
case,  besides  according  to  our  verbal  conversation  you  have  promised 
to  return  the  beans  on  the  same  place  where  we  delivered  same  to 
you.  Only  to  oblige  we  agree  to  take  delivery  of  the  beans  on  other 
pristans,  which  are  convenient  for  loading  and  only  with  full  barge- 
load.  It  takes  too  much  time  to  collect  the  beans  from  all  the  pristans 
besides  it  is  too  expensive.  We  can  only  agree  to  collect  the  whole 
quantity  of  beans  on  condition  that  you  refund  to  us  the  expenses." 
(Ex.  E). 

This  letter  is  signed  by  Mr.  Topas  who,  according  to 
Mr.  Zimmerman  (p.  10)  was  defendant's  managing  partner 
in  Harbin  and  who,  according  to  the  same  witness  (p.  3) 
conducted  the  "conversation"  referred  to  in  the  last  letter. 

On  July  28  plaintiff,  thru  its  manager,  Mr.  Schiel, 
again  wrote  defendant  urging  an  early  acceptance  of  the 
beans  but  not  rejecting,  or  objecting  to,  the  terms  proposed 
in  defendant's  letter  of  July  20  (Ex.  E).  As  delivery  fol- 
lowed a  few  days  later,  according  to  the  testimony  of  Mr. 
Kempner,  the  natural  inference  would  be  that  plaintiff  de- 
livered, and  defendant  accepted,  according  to  the  latter's 
terms  of  July  20  (Ex.  E).  However,  these  terms,  insofar 
as  they  required  delivery  in  "full  barge  loads"  were,  it  will 
be  seen  subsequently,  the  same  as  those  prescribed  in  de- 
fendant's letter  of  April  19,  and  if  we  were  to  adopt  the 
contention  of  plaintiff's  counsel  that  the  conditions  upon 
which  the  parties  delivered  were  the  same  thruout,  we 
should  be  obliged  to  find  that  the  last  consignment,  as  well 
as  the  first,  was  delivered  subject  to  said  condition.  Plain- 
tiff, however,  does  not  seem  to  have  regarded  the  terms  as 
continuous  for,  as  we  have  seen,  in  Mr.  Schiel's  letter  of 
July  18  (Ex.  C),  he  proposes  delivery  at  different  points  in 
greatly  varying  quantities  (at  one  place  as  low  as  sixty-five 
hundred  pounds)  and,  whereas,  according  to  Mr.  Zimmer- 


504  I  EXTRATERRITORIAL  CASES. 

man's  testimony  (p.  4) ,  a  full  barge  load  is  twenty-five  thou- 
sand pounds,  in  five  out  of  the  eight  places  of  deliveiy  sug- 
gested by  plaintiff  (Ex.  E)  the  amounts  are  (in  most  cases 
considerably)  less.  Hence  we  must  regard  plaintiff  as  thus 
proposing  new  and  different  terms  from  those  of  the  first 
contract  and  which  it  was  optional  with  defendant  to  accept 
or  reject.  But  defendant  did  not  accept  these  terms  un- 
conditionally. Reminding  plaintiff  of  a  verbal  promise 
(nowhere  denied)  "to  return  the  beans  to  the  same  place 
where  we  delivered  same  to  you,"  defendant  makes  a  counter 
offer  to  accept  delivery  at  other  places  and  in  smaller 
amounts  only  upon  condition  that  plaintiff  "refund  to  us  the 
expenses,"  which  we  understand  to  mean  the  additional 
cost  occasioned  by  changing  the  method  of  delivery. 

We  have  seen  that  the  answer  alleges  that  "plaintiffs 
failed  forthwith  so  to  deliver,"  i.  e.,  in  accordance  with  the 
terms  imposed  by  defendant's  counter-offer  of  July  20. 
But  we  do  not  find  the  evidence  sufficient  to  support  that 
averment.  The  said  letter  was  followed,  as  we  have  seen, 
by  plaintiff's  communication  of  July  28  in  which  the  terms 
of  the  former  were  at  least  tacitly  accepted  and  delivery 
seems  to  have  commenced  within  about  one  week  and  would, 
it  is  claimed,  have  commenced  earlier  had  the  barges  been 
provided.-  Now  this  counter-offer  could  be  accepted  by  deed 
as  well  as  word,  acceptance  may  even  be  inferred  from 
silence  -  and  the  presumption  would  seem  to  be  that  delivery 
which  followed  said  unrejected  counter-offer  was  in  pur- 
suance of  the  latter's  terms.  The  only  testimony  tending 
to  overcome  said  presumption  is  that  of  Mr,  Zimmerman 
which,  so  far  as  material  to  this  point,  is  as  follows: 

A.  Mr.  Schiel  came  to  the  office  and  over  the  telephone  he  asked 
me  to  take  the  beans.  I  did  not  want — he  said  take  them  anyway  and 
we  will  come  to  conclusion  afterwards  about  the  terms.  He  asked 
me  to  take  the  beans. 

Q.  Is  that  all? 

A.  Yes. 

Q.  What  did  you  understand  would  be  the  final  settlement? 

A.  We  would  be  like  agents  to  sell  the  beans. 

=  9  Cyc,  257,  258. 


NEWMAN'S  COMPANY  V.  ZIMMERMAN,  JUNE  25,  1915.    505 

Q.  Was  that  your  understanding? 

A.  Yes. 

Q.  Did  you  expect  to  suffer  a  loss  on  those  beans? 

A.  Yes,  our  people  came  and  tells  us  that  the  beans  have  been  in 
the  flood  and  some  have  been  damaged.  I  told  Mr.  Schiel  to  get 
ready  and  take  them  anyway. 

Q.  Did  you  expect  to  suffer  a  loss? 

A.  Yes. 

Q.  Who  was  going  to  bear  that  loss? 

A.  He  was  to  bear  them. 

Q.  Did  he  say  so? 

A.  Yes.      (pp.  5,  6). 

But  Mr.  Zimmerman  also  testifies : 

Q.  Who  was  your  man  in  Harbin? 

A.  Topas. 

Q.  It  is  true  that  he  conducted  all  the  business? 

A.  At  that  time,  yes.      (p.  10). 

Topas,  indeed,  was  the  one  who  wrote  and  sent  for  de- 
fendant the  letter  of  July  20  and  other  letters  relative  to 
these  transactions  and  emanating  from  defendant.  And 
altho  Topas  "conducted  all  the  business  *  *  *  at  that 
time"  he  was  not  called  upon  to  participate  in  this  con- 
versation with  Mr.  Schiel.  Moreover,  the  results  of  that  con- 
versation were  not,  so  far  as  appears,  evidenced  by  letters  as 
all  previous  transactions  had  been  and  we  think  it  would  be 
very  unsafe  to  accept  the  mere  "understanding"  of  one 
witness  (and  he  an  interested  one)  as  to  the  effect  of  said 
conversation.  And  it  will  be  seen  that  Mr.  Zimmerman  pur- 
ports to  give  nothing  more  than  his  understanding  in  support 
of  the  proposition  that  "we  would  be  like  agents."  It  is  true 
that  after  several  leading  questions  he  finally  answers  affirm- 
atively the  question  whether  Schiel  said  that  "he  was  to  bear 
them"  (i.  e.,  the  loss) ,  but  we  can  hardly  accept  this  as  suffi- 
cient to  bind  the  partnership  in  view  of  the  fact  that  de- 
fendant's terms  of  July  20  had  neither  been  rejected  nor 
withdrawn.  On  the  whole  we  must  find  the  evidence  insuf- 
ficient to  overcome  the  presumption  that  delivery  took  place 
in  accordance  with  said  terms. 

As  this  created  a  new  and  independent  contract  under 
which  there  was  part  performance,  no  question  of  the  Stat- 
ute of  Frauds  arises.     It  would  seem,  however,  that  plain- 


506  I  EXTRATERRITORIAL  CASES. 

tiff  would  not  be  entitled  to  recover  from  defendant  for 
beans  which  were  so  damaged  as  to  be  unsalable,  unless, 
of  course,  such  damage  were  directly  due  to  defendant's 
fault.     For,  as  stated  in  a  work  of  authority: 

"Altho  in  the  absence  of  a  definite  agreement  as  to  quality  no  par- 
ticular quality  will  be  implied,  and  the  seller  is  not  bound  to  furnish 
goods  of  the  best  quality,  yet  he  cannot  fulfil  his  contract  by  furnish- 
ing articles  of  the  poorest  quality,  but  must  furnish  articles  of  a 
fair  average  quality  and  such  as  are  merchantable."  * 

To  sum  up  our  conclusions  on  this  branch  of  the  case 
therefore  we  must  find: 

1.  That  for  the  purposes  of  this  case  the  "original  contract"  be- 
tween the  parties  was  that  evidenced  by  the  letters  of  April  19,  1914, 
and  May  18,  1914,  respectively,  according  to  which  delivery  was  to 
be  made  in  "not  less  than  a  full  cargo     *     *     *     at  each  port." 

2.  That  said  contract  was  not,  so  far  as  appears  either  modified 
or  substituted  by  another  and  was  perfonned  on  plaintiff's  part  by 
delivery  of  the  fifty  thousand  poods  required  by  said  contract,  for 
which   defendant  now   admits   liability. 

3.  That  plaintiff,  by  its  letter  of  July  18  (Ex.  C),  proposed  de- 
livery as  to  the  remaining  one  hundred  thousand  poods  upon  con- 
ditions, as  regards  place  and  mode  of  delivery,  differing  from  those 
of  the  original  contract  and  that  defendant  in  the  letter  of  July  20 
(Ex.  E)  declined  to  accept  said  change  and  proposed  counter  con- 
ditions which  required  plaintiff  to  bear  the  cost  of  such  change. 

4.  That  there  is  no  evidence  that  such  counter  offer  was  rejected 
by  plaintiff  or  withdrawn  by  defendant,  that  the  evidence  is  insuf- 
ficient to  establish  a  new  contract  involving  different  terms  and  that, 
therefore,  the  delivery  which  followed  must  be  presumed  to  have  been 
made  upon  the  terms  imposed  in  the  letter  of  July  20.  We  further 
find,  as  a  matter  of  law,  that  defendant  is  not  liable  to  pay  the  full 
price  for  beans  of  unmerchantable  quality  unless  the  defects  were 
directly  or  indirectly  caused  by  said  defendant.  As  a  result  of  our 
findings  on  the  last  two  points,  therefore,  it  will  be  necessary,  before 
judgment  can  be  rendered,  for  the  parties  to  agree  or  otherwise  as- 
certain : 

1.  The  additional  cost  of  collecting  the  beans  by  reason  of  the 
failure  to  deliver  in  "full  barge  loads." 

2.  The  deduction,  if  any,  to  which  the  defendant  is  entitled  by 
reason  of  the  apparently  conceded  fact  that  a  portion  of  the  beans 
were  unmerchantable. 

"  35  Cyc,  214. 


NEWMAN'S  COMPANY  V.  ZIMMERMAN,  JUNE  25,  1915.    507 

Paragraph  three  of  the  amended  answer  reads  as  follows : 

"The  defendant  objects  that,  as  disclosed  on  the  face  of  the  peti- 
tion the  contracts  and  agreements  alleged  to  have  been  made  by  and 
between  the  plaintiffs  and  the  defendant's  firm  were  made  and  were 
to  be  performed  in  the  Consular  District  of  Harbin  and  are  not 
within  the  jurisdiction   of  the   Court   at   Tientsin.  ' 

While  this  objection  has  not  been  pressed  thus  far  it 
may  still  be  and,  in  any  event,  it  raises  a  question  of 
such  importance  that  it  ought  not  to  be  passed  over  with- 
out a  ruling.  The  objection  is  based  upon  the  provision  * 
which  requires  consular  courts  to 

4'*  *  *  entertain  jurisdiction  in  matters  of  contract,  at  the 
port  where,  or  nearest  to  which,  the  contract  was  made,  or  at  the 
port  at  which,  or  nearest  to  which,  it  was  to  be  executed,  and  in  all 
other  matters,  at  the  port  where,  or  nearest  to  which,  the  cause  of 
controversy  arose,  or  at  the  port  where,  or  nearest  to  which,  the 
damage  complained  of  was  sustained,  provided  such  port  be  one  of 
the  ports  at  which  the  United  States  are  represented  by  consuls." 

This  formed  part  of  the  act  of  Congress  of  June  22, 
1860,  and  continued  to  govern  the  consular  courts,  at 
least,  until  the  major  portion  of  their  jurisdiction  was 
withdrawn  by  the  establishment  of  this  Court.  Its  organic 
act  of  June  30,  1906,  providing  for  such  establishment, 
however,  contains  the  following: 

"*  *  *  The  said  Court  shall  hold  sessions  at  Shanghai,  China, 
and  shall  also  hold  sessions  at  the  cities  of  Canton,  Tientsin,  and 
Hankau  at  stated  periods,  the  dates  of  such  sessions  at  each  city 
to  be  announced  in  such  manner  as  the  Court  shall  direct,  and  a  ses- 
sion of  the  Court  shall  be  held  in  each  of  these  cities  at  least  once 
annually.  It  shall  be  within  the  power  of  the  judge,  upon  due  notice 
to  the  parties  in  litigation,  to  open  and  hold  Court  for  the  hearing 
of  a  special  cause  at  any  place  permitted  by  the  treaties,  and  where 
there  is  a  United  States  consulate,  when,  in  his  judgment,  it  shall 
be  required  by  the  convenience  of  witnesses,  or  by  some  public  in- 
terest." ^ 

A  comparison  of  these  two  provisions  leads  irresistibly 
to  the  conclusion  that  both  can  hardly   be  in  force  as' 

*  U.  S.  Rev.  Stats.,  sec.  4085. 

"34  U.  S.  Stats,  at  Large,  Sess.  I,  Pt.  I,  Ch.  3934,  sec.  1,  p.  814. 


508  I  EXTRATERRITORIAL  CASES. 

regards  this  Court.  If  Congress  had  intended  that  the 
venue  of  all  actions  therein  should  continue  to  be  the  port 
"nearest  to  which  the  cause  of  controversy  arose"  it  would 
naturally  have  required  sessions  at  each  Consulate,  if  not  at 
each  leading  port,  instead  of  at  only  four  places  in  all 
China.  The  designation  of  such  places  was  evidently  to 
provide  for  the  trials  not  only  of  causes  arising  in  the 
surrounding  consular  district  but  in  adjacent  districts  as 
well,  with  the  discretionary  power  on  the  part  of  the 
judge  to  order  special  sessions  as  emergencies  might  re- 
quire. So  far  then  as  this  Court  is  concerned  we  are  of 
the  opinion  that  the  section  first  above  quoted  is  no  longer 
applicable. 

If  this  were  what  is  known  as  a  "local  action,"  i.  e.,  one 
involving  title  to  land,  we  might  be  disposed  to  exercise 
the  discretionary  power  thus  conferred  by  requiring  trial 
at  a  point  nearest  the  situs  of  the  property;  but  this 
action  is  a  transitory  one  and  under  the  prevailing  Amer- 
ican procedure  would  be  tried  at  the  place  where  service  is 
made  upon  the  defendant.^ 

It  may  be  added  that  no  question  of  jurisdiction  arises 
here.  The  territorial  jurisdiction  of  this  Court  extends 
thruout  China,  jurisdiction  of  the  subject  matter  is 
conferred  by  law  and  jurisdiction  of  the  person  was 
acquired  by  the  service  of  summons  followed  by  appear- 
ance. At  most  the  question  is  merely  one  as  to  the  place 
of  trial,  and  in  the  light  of  the  organic  act  we  think  it  is 
entirely  discretionary  with  the  Court  whether  to  direct 
a  trial  at  Tientsin  or  Harbin.  But,  as  also  suggested, 
the  evident  intention  is  to  provide  for  trial  outside  of  the 
four  regular  places  only  in  emergencies,  and  as  no  show- 
ing sufficient  to  constitute  an  emergency  has  yet  been  made, 
we  are  not  disposed  to  exercise  that  discretion  here.  The 
objection  is,  accordingly, 

OVERRULED. 

*  "The  trend  of  modem  authority  is  toward  the  proposition*  that 
an  action  is  properly  brought  wherever  the  trial  court  has  jurisdic- 
tion over  the  person  of  the  defendant  and  can  award  adequate  relief 
in  proceedings  against  him  personally.  In  America,  under  the  pre- 
vailing statutory  systems,  the  general  test  of  venue  looks  to  the  res- 
idence of  one  of  the  parties."     40  Cyc.  24,  25. 


CAMERON  V.  WILLIAMS,   JULY  8,   1915.  509 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Thomas  A.  S.  Cameron,  Plaintiff,  v.  John  W.  Williams  and 
John  D.  Zumbrum,  doing  business  under  the  name  of 
Camera  Craft  Co.,  Defendants. 

[Cause  No.  447;  filed  July  8,  1915.] 

SYLLABUS. 

(By  the  Court.) 

1.  PARTNERSHIP:    EMPLOYMENT:    TERMINATION.     An    employee    of   a 

partnership  who  has  tendered  his  resignation  is  not  entitled  to 
complain  if  his  employment  is  terminated  while  such  resigna- 
tion is  pending. 

2.  Id.  :  Id.  :  Id.     A  resignation  sent  to  one  partner  may  be  accepted  by 

another,  especially  if  he  has  been  designated  as  the  firm 
"manager." 

3.  Id.  :  Id.     In  contracts  of  employment,  a  partner  may  bind  the  firm 

only  in  the  ordinary  course  of  business. 

4.  Id.  :   Id.     It  is  not  ordinary  course  for  one  partner  to  enter  into 

a  secret  agreement  with  an  existing  employee  materially  in- 
creasing the  latter's  advantages  at  the  expense  of  the  firm, 
but  withholding  from  the  other  members  all  knowledge  of  such 
arrangement. 

5.  Id.  :   Firm  Contracts.     An  instrument  signed  by  only  one  partner 

not  in  the  firm  name,  does  not  bind  the  firm  unless  ratified  by 
the  others. 

Messrs.  Allen  &  Lucker,  by  Mr.  Allen,  for  plaintiff. 
Messrs.  Kent  &  Mounsey,  by  Mr.  Kent,  for  defendant 
Zumbi'um. 

Defendant  Williams,  pro  se. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  upon  a  written  contract 
of  employment  alleged  to  have  been  made  between  plaintiff 
and  the  defendant  Williams  in  behalf  of  the  partnership 
known  as  the  "Camera  Craft  Company."  It  appears  from 
the  undisputed  testimony  of  the  defendant  Zumbrum  that 
plaintiff  was  first  employed  by  the  partnership  at  the 
suggestion  of  the  defendant  Williams,  who  is  plaintiff's 
brother-in-law,  on  March  14,  1912,  under  a  verbal  con- 
tract and  that  he  so  continued  for  nearly  three  years^ 
until  January   20,    1915,    when   the   following   instrument 


510  I  EXTRATERRITORIAL  CASES. 

was  entered  into  between   said   defendant  Williams  and 
plaintiff  (Ex.  A)  : 

"T.  A.  S.  Cameron,  Esq., 

Tientsin. 
Dear  Mr.  Cameron: 

"I  confirm  the  several  conversations  we  have  had  on  the  subject 
of  your  services  to  the  Camera  Craft  Co.,  and  the  final  arrangements 
arrived  at  as  follows: 

"1.  That  you  will  continue  in  the  capacity  of  assistant  for  a 
period  of  two  years  from  1st  February,  1915,  at  a  salary  of  $185 
including  rental  allowance, 

"2.  That  you  will  draw  a  commission  upon  the  gross  sales  (credit 
and  cash  after  deducting  returns)  of  one  per  cent,  payable  half  yearly 
to  you,  that  is  to  say,  on  the  1st  August  and  1st  February  of  every 
year. 

"3.  That  your  duties  will  include  sales,  the  preparation  of  the 
usual  monthly  returns,  and  such  orders  and  instructions  as  you  may 
receive  from  time  to  time  from  me  or  such  person  or  persons  as  I 
may  hereafter  at  any  time  set  in  authority  over  you. 

"4.  This  arrangement  may  be  determined  at  any  time  by  either 
party  giving  six  months'  notice  without  necessarily  assigning  any 
reasons.  This  arrangement  will  also  be  subject  to  determination  by 
me  at  any  time  by  giving  you  three  months'  notice  or  pay  in  lieu 
of  notice  if  you  do  not  carry  out  your  duties  satisfactorily  or  in 
the  event  of  insobriety,  misconduct  or  absence  from  your  duties 
without  leave  unless  on  account  of  illness  or  other  unavoidable  cause. 
"Yours  truly, 

(Sgd.)     J.  W.  Williams, 

Managing  Director. 
"Agreed. 

(Sgd.)      T.  A.   S.   Cameron. 

Witness:  Charles  M.  Corren." 
30th  January,  1915. 

On  April  2,  1915,  plaintiff  wrote  as  follows  (Ex.  1)  : 

"Peking, 

April  2nd,  1915. 
"Mr.  J.  W.  Williams, 

Managing  Director, 

Camera  Craft  Co., 
Tientsin. 
Dear  Mr.  Williams: 

"I  enclose  herewith  my  official  resignation  from  the  Camera 
Craft  Co.,  but  would  like  to  express  my  deep  regret  at  having  to 
do  so.  The  reason  for  this  step  is  simply  and  solely  because  of  the 
extreme  unpleasantness  which  has  existed  for  some  time  past,  and 


CAMERON  V.  WILLIAMS,  JULY  8,   1915.  511 

still  exists,  between  Mr.  J.  D.  Zumbrum  and  myself.  Apart  from 
this  undesirable  feature,  there  is  no  other  reason  why  I  wish  to  leave 
your  service.  I  am  extremely  sorry  that  this  circumstance  forces 
me  to  sever  my  connection  with  you. 

"In   conclusion   I   would   like   to   tender   you  my  thanks   and   ap- 
preciation of  your  kindness  during  my  employment  with  the  Camera 
Craft  Co.   under  your  Directorship,  and  express  the  hope  that  my 
services  up  to  the  present  have  afforded  you  every  satisfaction. 
"Again  expressing  my  regret  at  having  to  withdraw  my  services, 
"I  remain, 

"Yours  very  truly, 

(Sgd.)     "T.  A.  S.  Cameron." 

The  partnership's  principal  place  of  business  was  at 
Peking  where  both  plaintiff  and  defendant  Zumbrum  were 
employed  and  the  former,  notwithstanding  the  communica- 
tion last  quoted,  continued  to  remain  at  said  place  of 
business  until  April  13,  1915,  when,  according  to  his  ver- 
sion, defendant  Zumbrum  asked  for  the  keys  to  the  cash 
drawer  and  desk  which  plaintiff  refused  to  give  him  and 
Zumbrum  then  told  him  to  leave  and  not  come  back  in  the 
afternoon.  Defendant  Zumbrum  admits  having  told  plain- 
tiff not  to  come  back  in  the  afternoon  but  denies  having 
dismissed  him.  Plaintiff,  however,  did  not  return  to  the 
firm's  place  of  business  at  Peking. 

As  to  plaintiff's  claim  that  defendant  Zumbrum  perma- 
nently discharged  him,  the  burden  rests  upon  him.  But 
aside  from  the  fact  that  we  find  no  reason  for  giving 
greater  credit  to  the  claim  than  to  its  denial,  it  must  be 
remembered  that  plaintiff  had  formally  resigned  from 
the  service  of  the  partnership  eleven  days  before.  It  is 
true  that  this  resignation  was  sent  to  another  partner 
and  was  unknown  to  Zumbrum,  but  to  be  effective  it  must 
have  been  intended  for  the  whole  firm  and  in  fact  it  ex- 
pressly purports  to  be  a  "resignation  from  the  Camera 
Craft  Company."  Hence  if  Zumbrum  did  really  terminate 
plaintiff's  employment  it  was  only  what  he  had  asked  the 
firm  to  do  and  of  that  he  cannot  complain. 

Moreover,  if  defendant  Zumbrum  had  authority  to  dis- 
charge plaintiff,  as  the  latter  now  contends  he  did,  he 
would  seem  equally  to  have  had  authority  to  accept  plain- 
tiff's pending  and  unrevoked  resignation.     We  must  hold. 


512  I  EXTRATERRITORIAL  CASES. 

therefore,  that  even  if  the  defendant  Zumbrum  did  use  all 
of  the  language  attributed  to  him  by  plaintiff,  it  amounted 
to  nothing  more  than  an  acceptance  of  the  resignation 
voluntarily  tendered  by  the  latter.  It  is  true  that  plain- 
tiff's reinstatement  was  suggested  in  a  subsequent  letter 
from  his  attorney  to  defendant  Zumbrum,  but  if  the  oc- 
currence of  April  13  amounted  to  an  acceptance  of  the 
resignation  (as  we  think  it  did  if  plaintiff's  version  is 
correct)  reinstatement  would  require  a  new  contract. 

On  the  other  hand,  if  we  accept  defendant's  account  of 
what  took  place  on  April  13,  1915,  plaintiff's  departure  was 
largely  voluntary  and  likewise  amounted  to  putting  his 
resignation  into  effect  without  further  action  on  defend- 
ants' part.  In  either  case,  therefore,  we  are  unable  to 
uphold  the  claim  of  wrongful  dismissal. 

II. 

There  remains,  nevertheless,  the  question  as  to  whether 
plaintiff  is  entitled,  as  against  the  defendant  Zumbrum, 
to  benefits  of  the  provisions  contained  in  the  instrument 
of  January  20  (Ex.  A),  and  particularly  those  relating 
to  six  months'  notice  and  a  commission  on  sales.  These 
were  new  features  in  plaintiff's  employment.  They  would 
result  very  much  to  plaintiff's  advantage,  for  they  not 
only  increased  his  compensation  materially,  but  so  fixed 
his  relations  with  defendants  that  even  if  he  should  be 
discharged  for  cause,  he  would  be  entitled  to  "three  months' 
pay  in  lieu  of  notice."  That  such  important  changes 
in  a  contract  should  have  been  submitted  to  the  other 
partners  hardly  seems  to  need  argument.  It  is  not  claimed 
that  any  emergency  had  arisen  which  made  such  changes 
imperative,  or  which  required  the  execution  of  a  contract 
before  the  others  could  be  heard  from,  especially  as  one 
of  them  was  but  a  short  distance  away  at  Peking.  Yet 
it  is  conceded  that  both  of  the  other  partners  were  kept 
in  ignorance  of  this  contract,  altho  defendant  Williams 
was  in  frequent  correspondence  with  them.  Indeed,  on 
the  very  day  on  which  the  contract  in  question  was  made, 
he  seems  to  have  written  a  five  page  typewritten  letter 
(Ex.  8)   to  the  non-resident  partner  in  which  he  had  a 


CAMERON  V.  WILLIAMS,  JULY  8,  1915.  518 

great  deal  to  say  about  the  business  but  gave  no  hint  of 
the  contract  in  question.  And  the  plaintiff  himself,  tho 
in  daily  association  with  defendant  Zumbrum,  admits  that 
he  never  mentioned  the  contract.  If,  therefore,  we  were 
to  give  him  the  benefit  of  its  provisions,  we  should  be 
obliged  to  hold  that  one  partner  may  secretly  increase  the 
privileges  and  emoluments  of  a  firm  employee  who  happens 
to  be  his  relative  by  marriage  and  keep  all  the  other 
partners  uninformed  until  some  event  happens  which  ren- 
ders it  advantageous  for  the  employee  to  disclose  them. 
To  so  hold  would,  in  our  judgment,  be  contrary  to  law. 

"When  the  contract  is  not  made  in  the  ordinary  course  of  the 
partnership  business     *     *     *     the  contract  does  not  bind  the  firm." ' 

The  ordinary  course  of  business  here  would  have  been, 
as  has  been  suggested,  to  consult  the  other  partners  be- 
fore attempting  to  make  changes  of  such  importance.  In 
one  case  it  appears  that  the  managing  partner  dismissed 
an  employee  who  nevertheless  remained  at  the  request  of 
the  dormant  partners  who  alone  were  held  liable  for  his 
employment.-     In  another  case  ^  it  was  held  that 

"After  the  service  had  been  rendered  it  was  not  competent  for  one 
member  of  the  firm,  without  the  consent  of  the  other,  to  subject  the 
firm  to  a  liability  for  additional  compensation.  In  such  case  the  firm 
is  not  liable." 

It  is  true  that  the  contract  in  question  does  not  pur- 
port to  be  retroactive,  like  that  in  the  case  last  cited,  but 
it  is  open  to  the  same  objection  of  secrecy  and  of  attempt- 
ing to  obtain  an  advantage  for  an  employee  without  con- 
sulting the  other  partners  and  without  any  emergency 
to  require  it. 

Nor  can  it  be  claimed  that  plaintiff  was  an  innocent 
beneficiary  of  this  arrangement.  He  knew,  as  we  have 
seen,  that  the  defendant  Zumbrum  was  not  informed  of 
the  contract,  and  it  is  not  suggested  that  he  believed,  or 
had  reason  to  believe,  that  such  information  had  been  given 
to  the  other  partner.  Moreover,  plaintiff  was  a  witness 
to  the  partnership  agreement  (Exhibit  D)  which  provided 


>30  Cyc,  491. 

'Briggs  V.  Smith,  4  Daly   (N.  Y.)    110. 

*Conn  V.  Conn,  23  Ore.,  452;  30  Pac.  330. 

14008  O.  W. 33 


514  I  EXTRATERRITORIAL  CASES. 

(Par.  5)  that  defendant  Zumbrum  "shall  act  as  manager 
of  the  Camera  Craft  Company,"  and  while  the  next 
paragraph  provides  that  defendant  Williams  "shall  act  as 
managing  director,"  etc.,  the  duties  of  neither  of  these 
positions  is  clearly  specified  and  it  would  seem  quite 
as  reasonable  to  suppose  that  Zumbrum's  consent  as 
**manager"  to  the  employment  of  one  who  was  to  work 
directly  with  him  was  quite  as  necessary  as  the  consent 
of  Williams,  who  resided  in  another  locality. 

Finally,  the  alleged  contract  of  employment  (Ex.  A) 
does  not  in  terms  purport  to  bind  the  firm.  The  Camera 
Craft  Company  is  mentioned  only  once  in  the  instrument 
and  that,  by  way  of  description,  in  the  preamble.  The 
instrument  is  not  signed  in  the  usual  form  where  the 
intention  is  to  bind  another,  which  in  this  case  would  be 
"Camera  Craft  Company  by  J.  W.  Williams,  Managing 
Director."     As  it  stated  in  a  work  of  authority  :* 

"Where  the  partners  have  adopted  a  firm  name  they  will  not  be 
bound  by  an  obligation  executed  in  any  other  name  by  a  partner  un- 
less the  use  of  such  name  has  been  assented  to  or  ratified  by  the  other 
partners." 

So  "in  general  a  note  which  is  executed  in  the  name  of 
an  individual  partner  will  not  bind  the  firm."  "^ 

The  rule  seems  to  be  that  the  employment  of  terms  like 
"managing  director"  in  this  case  is  mere  descriptio  per- 
sonae.  To  bind  the  firm  there  must  be  actual  use  of  its 
name  or  proof  of  ratification  by  its  members.  In  line 
with  these  authorities  we  are  constrained  to  hold  that  the 
instrument  of  January  20  bound  only  defendant  Williams 
and  that  its  terms  cannot  be  invoked  against  the  remain- 
ing defendant.  But  as  plaintiff  has  not  sought  nor 
indicated  a  desire  to  obtain  a  judgment  against  the  defend- 
ant Williams  alone  under  said  instrument,  no  such  judg- 
inent  will  be  rendered  at  this  time,  but  plaintiff  will  be 
permitted  to  amend  if  he  so  elect,  in  order  to  claim  such 
relief.  Defendant  Williams  is,  however,  liable  for  the 
amount  hereafter  found  due  since  he,  as  Managing  Director, 
might  have  paid  plaintiff  at  any  time. 

From  the  evidence  it  appears  that  plaintiff  was  not  ac- 
tually paid  his  salary  of  $185  for  the  month  of  March  nor 

*  30  Cyc,  485.  "  7  Id.,  548. 


UNITED  STATES  V.  ROHRER,  DEC.   16,   1915.  515 

tor  the  thirteen  days  in  April  during  which  he  worked  and 
for  which  he  would  be  entitled,  at  the  rate  of  six  and 
one-sixth  dollars  per  day,  to  $80.17,  making  a  total  of 
^265.17,  for  which  amount,  together  with  costs,  judgment 
is  accordingly  rendered  in  favor  of  plaintiff  and  against 
the  defendants. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

United  States  v.  John  Rohrer,  alias  Thomas  Riggs  alias 

John  Cook. 

[Cause   No.   471;    filed   December   16,    1915.] 

SYLLABUS. 
(By  the  Court.) 

1.  CRIMES:    Procedure.     Testimony  is  proper,  even  after  a  plea  of 

guilty,  for  the  purpose  of  showing  aggravating  or  extenuating 
circumstances  to  be  considered  in  fixing  the  penalty. 

2.  Id.  :    A    Plea   of    Guilty    is    not   technically    an    extenuating    cir- 

cumstance. 

3.  Id.  :  Self-defense.     It  is  incumbent  on  the  accused  to  prove  self- 

defense  and  to  show  that  he  took  reasonable  precautions,  in- 
cluding retreat  if  practicable,  to  prevent  attack. 

4.  Id.  :   Id.  :    Evidence  examined  and  found  insufficient  to  show  that 

the  crime  was  committed  in  self  defense. 

5.  Id.  :   Penalty.     Where  there  are  several  aggravating,  and  no  ex- 

tenuating, circumstances  the  maximum  penalty  will  be  imposed. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  (with  whom 
were  Messrs.  Anderson  and  Williatn  S.  Fleming  represent- 
ing the  Chinese  government),  for  the  prosecution. 

H.  D.  Rodger,  Esq.,  for  the  defense. 

LiOBINGIER,  J.: 

The  accused  under  various  aliases  pleads  guilty  to  an 
information  charging  that  he 

"purposely  and  maliciously  killed  one,  Yu  Fen  Chi,  a  policeman  and 
citizen  of  the  Republic  of  China,  by  shooting  him  with  a  rifle,  inflict- 
ing a  mortal  wound;  of  which  said  mortal  wound  the  said  Yu  Fen 
Chi  immediately  died;  this  on  or  about  the  twentieth  day  of  June, 
nineteen  hundred  and  fifteen;  this  at  or  near  the  village  of  Hsing 
Lung  in  the  Chien  P'ing  District  of  the  Province  of  Chihli  in  the 
Republic  of  China,  and  within  the  jurisdiction  of  said  Court;  and 
thereby  was  and  is  guilty  of  the  crime  of  murder:  against  the  laws 
of  the  United  States". 


516  I  EXTRATERRITORIAL  CASES. 

The  plea  of  guilty  removes  from  the  case  all  questions 
except  those  relating  to  the  penalty.  It  will  be  seen  that 
the  information  charges  neither  premeditation  nor  com- 
mission in  the  actual  or  attempted  perpetration  of  another 
crime.  The  offense  charged,  therefore,  is  no  more  than 
"murder  in  the  second  degree"  '■  the  penalty  for  which  is 
imprisonment  for  a  period  ranging  from  ten  years  to  life.- 
The  difference  between  the  maximum  and  minimum  terms 
being  so  great,  and  the  consequent  discretion  conferred 
upon  the  court  being  so  wide,  the  details  of  the  affair  must 
be  analyzed  in  order  to  ascertain  whether  aggravating  or 
extenuating  circumstances  accompanied  the  crime. 

According  to  the  testimony  which  the  prosecution  was 
permitted  to  introduce  for  this  purpose,  the  accused  was  a 
private  soldier  in  the  15th  regiment  of  infantry  stationed 
at  Tientsin  and  deserted  therefrom  in  company  with  one 
Williams  in  June  last.  Together  they  took  a  westerly 
course  reaching  on  the  second  day  the  Great  Wall  near 
which,  according  to  Williams,  the  accused  with  a  rifle  which 
he  had  brought  from  the  Tientsin  barracks  knocked  a 
Chinese  in  the  head  and  took  his  shoes.  The  accused  ad- 
mits the  assault  but  says  that  Williams  took  the  shoes  tho 
the  accused  wore  them.  Later  according  to  all  the  wit- 
nesses the  accused  seized  a  horse  from  another  Chinese  and 
also  committed  the  offense  charged  in  the  information. 
Subsequently  the  two  invented  a  story,  which  both  now 
admit  to  have  been  false,  that  they  were  British  subjects, 
and  told  it  under  oath  before  the  British  Consul  at  Mukden. 

The  commission  of  any  other  offense  in  connection  with 
the  one  proved  is,  of  course,  an  aggravating  circumstance. 
Here  there  was  not  only  one  but  a  series — including  deser- 
tion, assault,  larceny  (two  offenses),  robbery  (apparently) 
and  perjury. 

In  addition  there  is  the  circumstance  that  the  crime 
charged  was  committed  within  the  territory,  and  upon  a 
subject,  of  a  friendly  nation  which  by  its  treaties  with  our 
own  government  permits  American  citizens  to  reside  in 
said  territory  and  remain  under  their  own  laws  and  courts, 
but  upon  the  express  condition  that  "justice  shall  be  equit- 


'  Federal  Penal  Code,  sec.  275.  =■  Id. 


UNITED  STATES  V.  ROHRER,  DEC.   16,   1915.  517 

ably  and  impartially  administered."  ^  This  imposes  upon 
said  courts  the  obligation  to  see  that  such  laws  are  enforced 
at  least  as  rigorously  as  they  would  be  in  America  itself. 

On  the  other  hand  we  are  unable  to  find  proof  of  any 
extenuating  circumstances.  For  the  plea  of  guilty,  while 
it  may  be  taken  into  account,  is  technically  not  such  a  cir^ 
cumstance.*  It  was  suggested  in  argument  that  the  accused 
found  himself  in  a  strange  country,  became  alarmed 
at  his  surroundings  and  that  this  is  some  way  mitigated 
the  offense.  It  must  be  remembered,  however,  that  he  had 
gone  into  that  region  voluntarily  and  had  even  deserted 
from  the  military  service  of  his  country  in  order  to  reach 
there.  The  situation  was,  consequently,  altogether  of  his 
own  making  and  can  hardly  be  considered  in  his  own  be- 
half. 

Nor  do  we  think  that  the  evidence  approaches  a  showing 
that  the  crime  of  murder,  here  confessed,  was  committed  in 
self-defense.  For  that  fact  is  one  which  it  is  incumbent 
on  the  accused  to  establish.^  It  is  true  that  both  he  and 
Williams  claim  that  the  victim  was  running  toward  the 
accused  gun  in  hand  when  the  latter  fired.  But  not  only 
does  this  contradict  all  the  Chinese  witnesses,  who  state 
that  the  deceased  carried  his  gun  in  a  sling  across  his 
shoulder;  even  if  accepted  it  does  not  show  that  retreat 
was  impracticable  or  that  the  accused  made  any  effort  to 
avoid  the  alleged  attack;  and  these  are  essential  elements 
of  self-defense."' 

There  being  several  aggravating  and  no  extenuating  cir- 
cumstances we  feel  bound,  in  accordance  with  the  more 
advanced  authorities  on  criminal  law  ^  to  impose  the  maxi- 
mum penalty. 

The  accused  is  accordingly  sentenced  to  life  imprison- 

"  Treaty  of  1844  8  U.  S.  Stats,  at  Large,  596,  art.  XXI,  Malloy, 
Treaties,  202,  ante  p.  1. 

*U.  S.  V.  Molo,  5  Phil.  414,  4  Off.  Gaz.  57;  U.  S.  v.  Ablaza,  1 
Phil.  740,  1  Off.  Gaz.  143.  Cf.  U.  S.  v.  Talbanos,  6  Phili.  541,  4  Off. 
Gaz.  695. 

=  21  Cyc.  883,  note  84. 

'  21  Cyc.  801,  1028,  1029.  See  U.  S.  v.  Grafton,  6  Phil.  55  where 
the  rule  as  to  the  necessity  of  caution  was  not  changed  on  appeal. 

'  See,  e.  g.,  the  Spanish  Penal  Code,  art.  79. 


518  I  EXTRATERRITORIAL  CASES. 

ment  and  to  pay  the  costs  of  this  prosecution.  Under  the 
ruling  of  the  Attorney-General  he  will  be  transported  to 
Bilibid  Prison  at  Manila,  territory  of  the  Philippines,  there 
to  commence  the  service  of  said  term  of  imprisonment 
and  to  continue  until  provision  is  made  for  his  transfer 
to  some  suitable  place  of  confinement  in  the  United  States. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Hilton  A.  Williams  alias  James  Carter. 

[Cause  No.  469;  filed  December  16,  1915.] 

SYLLABUS. 
(By  the  Court.) 

1.  ROBBERY:    ACTUAL  VIOLENCE  IS  NOT  NECESSARY  to  constitute  the 

crime  of  Robbery  as  defined  by  Sec.  284  of  the  Federal  Penal 
Code. 

2.  Id.:    Evidence   examined   and   found   sufficient   to   show   felonious 

taking  "by   putting   in  fear." 

3.  Id.  :   Sentence  imposed  with  due  consideration  for  the  fact  that 

the  accused  had  testified  for  the  Government  in  another  cause, 
but  taking  account  also  of  certain  aggi*avating  circumstances. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the  pros- 
ecution. 

Arthur  S.  AUa7i,  Esq.,  for  the  defense. 

LOBINGIER,  J.: 

The  information  charges  that  the  defendant 

"on  or  about  the  twentieth  day  of  June,  nineteen  hundred  and  fifteen, 
on  a  road  or  trail  near  the  village  of  Liu  Chai  Ts'un,  in  the  Ping 
Ch'uan  District  of  the  Province  of  Chihli,  in  the  Republic  of  China, 
and  within  the  jurisdiction  of  said  Court,  feloniously  took  a  horse 
from  one  Ma  Ch'un  Shan,  a  citizen  of  China,  against  his  will  and 
by  violence  to  his  person ;  and  thereby  was  and  is  guilty  of  the  crime 
of  Robbery:   against  the  laws  of  the  United  States." 

There  are  only  two  witnesses,  the  owner  of  the  horse 
and  the  accused,  and  it  is  undisputed  that  the  latter,  who 
was  a  private  soldier  in  the  Fifteenth  Regiment  of  Infantry 
of  the  United  States  Army,  deserted  therefrom  in  company 
with  another,  both  taking  rifles  from  the  government  bar- 
racks and  wandering  westward  towards  Mongolia.  While 
thus  en  route  the  accused,  mounted  on  a  horse  which  he 
claims  to  have  purchased,  met  the  complaining  witness  also 


UNITED  STATES  V.  WILLIAMS,  DEC.  16,   1915.  519 

mounted  but  unarmed  and  proceeded,  as  the  accused  says, 
to  "trade"  horses  with  the  Chinese.  The  latter,  however, 
testifies  that  the  accused  attacked  him  and  compelled  him 
to  dismount,  taking  his  horse  and  leaving  the  other.  This 
appears  to  be  the  more  probable  story  but,  in  any  event, 
while  the  accused  denies  the  use  of  force  to  compel  the 
Chinese  to  surrender  his  horse,  the  fact  remains  that  the 
accused  was  unable  to  communicate  with  the  Chinese  in 
the  latter's  language,  and  as  he  was  unarmed,  and  as  the 
accused  had  the  rifle  which  he  had  purloined  from  the 
government  and  was  also  accompanied  by  his  armed  fellow- 
deserter,  there  would  seem  to  have  been  little  need  of  the 
actual  employment  of  force.  The  display  of  it,  however, 
was  apparent  and  this  is  all  that  seems  to  be  required  under 
the  Federal  Penal  Code,  which  provides: 

"Whoever,  by  force  and  violence,  or  by  putting  in  fear  shall 
feloniously  take  from  the  person  or  presence  of  another  anything 
of  value,  shall  be  imprisoned  not  more  than  fifteen  years.^ 

It  seems  clear  from  the  testimony  of  the  owner,  and  it 
is  not  seriously  denied  by  the  accused  himself,  that  the 
former  was  actually  "put  in  fear"  and  for  that  reason  alone 
surrendered  his  horse. 

We  must  accordingly  find  the  accused  guilty  of  the  crime 
of  Robbery  as  above  defined,  and  the  only  remaining  ques- 
tion is  the  extent  of  the  penalty. 

As  we  have  seen  the  accused  had  also  committed  the 
offense  of  desertion.  He  was  also  probably  guilty  of  the 
crime  of  perjury  in  connection  with  the  accused  in  Case 
No.  471  decided  herewith  but,  on  the  other  hand,  he  testified 
for  the  government  in  the  said  case  and  the  District  At- 
torney, on  that  account,  recommends  leniency,  stating  that 
the  testimony  of  the  accused  has  been  of  great  assistance 
to  the  prosecution.  The  maximum  penalty,  as  we  hav^  seen, 
is  fifteen  years.  In  a  case  ^  decided  by  this  Court  on 
November  2,  1914,  the  accused  was  sentenced  to  three  years 
imprisonment  for  armed  robbery  and  the  circumstances 
were  in  some  respects  less  aggravating  than  in  the  case  at 
bar.     We  do  not  feel  that  the  interests  of  justice  would  be 

'Federal  Penal  Code,  sec.  284. 
'U.  S.  V.  LeClair,  ante,  p.  414. 


520  I  EXTRATERRITORIAL  CASES. 

subserved  by  the  imposition  of  a  lighter  sentence  than  in 
the  case  mentioned. 

The  accused  is  therefore  sentenced  to  three  years  im- 
prisonment to  be  served,  under  the  ruling  of  the  Attorney- 
General,  in  Bilibid  Prison  at  Manila,  Territory  of  the  Phil- 
ippines, unless  and  until  provision  is  made  for  his  transfer 
to  some  more  suitable  prison  in  the  United  States,  and  to 
pay  the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Harry  P.  Peeks. 

[Cause  No.  472;  filed  December  16,  1915.] 

SYLLABUS. 
(By  the  Court.) 

1.  OPIUM  TEAFFIC:    STATUTES.     Sec.  3,  of  the  Act  of  February  23, 

1887,  prohibiting  the  importation  of  opium  by  American  citizens 
into  China  examined  and  found  to  show  an  evident  clerical 
omission. 

2.  Id.:  Penalty:  The  Maximum  Fine  provided  by  said  section  is,  at 

best,  inadequate  in  view  of  the  seriousness  of  the  offense  and 
the  fact  that  the  accused  was  but  recently  convicted  of  another. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the  pros- 
ecution. 

James  B.  Davies,  Esq.,  of  Fleming  &  Davies,  for  the 
defense. 

LOBINGIER,  J.: 

The  defendant  pleads  guilty  to  an  information  charging 
that  he 

"on  or  about  the  tenth  day  of  December,  nineteen  hundred  and 
fifteen,  at  the  port  of  Shanghai,  in  the  Republic  of  China,  and  within 
the  jurisdiction  of  said  Court,  did  unlawfully  import  about  sixteen 
pounds  of  opium,  and  thereby  was  and  is  guilty  of  the  crime  of 
importing  opium  into  China:  against  the  provisions  of  the  Treaty 
between  the  United  States  of  America  and  China  concluded  November 
17,  1880,  article  II  and  against  the  laws  of  the  United  States." 

Under  the  treaties  in  force  between  the  United  States 
of  America  and  China  the  former  undertakes  that 

"citizens  of  the  United  States  shall  not  be  permitted  to  import  opium 
into  any  of  the  open  ports  of  China;  to  transport  it  from  one  open 


UNITED  STATES  V.  BEEKS,  DEC.  16,  1915.  521 

port  to  any  other  open  port;  or  to  buy  and  sell  opium  in  any  of  the 
open  ports  of  China.  This  absolute  prohibition,  which  extends  to 
vessels  owned  by  the  citizens  or  subjects  of  either  power,  to  foreign 
vessels  employed  by  them,  or  to  vessels  owned  by  the  citizens  or 
subjects  of  either  power  and  employed  by  other  persons  for  the 
transportation  of  opium,  shall  be  enforced  by  appropriate  legislation 
on  the  part  of  China  and  the  United  States;  and  the  benefits  of 
the  favored  nation  clause  in  existing  treaties  shall  not  be  claimed 
by  the  citizens  or  subjects  of  either  power  as  against  the  provisions 
of  this  article."  ^ 

In  pursuance  of  this  treaty  Confess,  on  February  23, 
1887,  enacted  a  statute  providing 

"*  *  *  That  the  importation  of  opium  into  any  of  the  ports 
of  the  United  States  by  any  subject  of  the  Emperor  of  China  is 
hereby  prohibited. 

"Every  person  guilty  of  a  violation  of  the  preceding  provision 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof, 
shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars 
nor  less  than  fifty  dollars,  or  by  imprisonment  for  a  period  of  not 
more  than  six  months  nor  less  than  thirty  days,  or  by  both  such 
fine  and  imprisonment,  in  the  discretion  of  the  court."  ^ 

Another  section  of  the  statute  prohibits  the  importation 
of  opium  by  American  citizens  into  China  and  then  pro- 
vides ^ 

"Citizens  of  the  United  States  offending  against  the  provisions 
of  this  section  shall  be  deemed  guilty  of  a  misdemeanor  and,  upon 
conviction  thereof,  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars  nor  less  than  fifty  dollars,  or  by  both  such  pun- 
ishments, in  the  discretion  of  the  court." 

A  comparison  of  these  two  provisions  will  disclose  what 
appears  to  be  a  clerical  error  in  drafting  the  statute  for 
while  it  expressly  provides  for  both  such  punishments,  in- 
dicating an  intention  to  prescribe  fine  and  imprisonment, 
only  the  former  is  actually  mentioned,  where  the  corre- 
sponding provision  of  section  one  provides,  as  we  have 
seen,  for  a  minimum  term  of  imprisonment  of  thirty  days.* 

'Treaty  of  1880,  art.  II;  Malloy  Treaties,  Vol.  1,  pp.  239,  240. 

'24  U.  S.  Stats,  at  Large,  sess.  II,  Ch.  210,  sec.  1,  p.  409;  Suppl. 
U.  S.  Rev.  Stats.  Vol.  1,  Ch.  210,  sec.  1. 

'Id.  sec.  3. 

*  This  appears  to  have  been  the  subject  of  some  official  cor- 
respondence between  former  Consul-General  Denby  and  the  State 
Department  under  date  of  October  16,   1907. 


522  I  EXTRATERRITORIAL  CASES. 

This  is  clearly  not  enforcing  the  treaty  "by  appropriate 
legislation"  and  can  only  be  explained  on  the  ground  of 
mistake  already  mentioned,  for  we  cannot  assume  that  Con- 
gress intended  any  difference  in  the  penalties  to  be  invoked 
for  a  violation  of  the  treaty  in  the  two  countries.  Never- 
theless we  shall,  for  the  present,  apply  the  statute  as  we  find 
it ;  but,  in  the  face  of  this  palpable  error,  we  are  unable  to 
see  much  force  in  counsel's  plea  for  a  minimum  fine.  It 
seems  to  us  that  the  maximum  is  little  enough  considering 
the  seriousness  of  the  offense  and  the  inadequacy  of  the 
penalty  as  a  deterrent. 

Moreover  the  accused  is  at  least  a  second  offender,  having 
been  convicted  in  this  Court  no  longer  ago  than  July  10, 1915.^ 
In  that  cause,  on  the  recommendation  of  the  District  Attor- 
ney, he  was  given  a  very  moderate  penalty  under  a  promise 
of  reform,  but  it  appears  that  he  had  barely  been  released 
from  imprisonment  for  that  offense  when  he  became  impli- 
cated in  the  one  for  which  he  is  now  prosecuted. 

We  feel  that  the  penalty  of  five  hundred  dollars  fine  is 
inadequate  for  the  present  offense,  but  in  view  of  the  lan- 
guage of  the  statute  we  feel  obliged  to  impose  it. 

The  accused  is  accordingly  sentenced  to  pay  a  fine  of 
five  hundred  dollars  United  States  currency,  together  with 
the  costs  of  this  prosecution,  and  he  having  stated  in  open 
Court  that  he  is  unable  to  pay  such  fine  it  is  ordered,  in 
accordance  with  the  rulings  of  the  Attorney  General,  that 
he  be  transported  to  Bilibid  Prison  in  Manila,  Territory  of 
the  Philippines,  there  to  stand  committed  until  the  same 
is  paid. 

In  U.  S.  V.  Biddle,  Cause  No.  480,  sentence  was  announced  orally 
by  the  same  Judge  on  February  24,  1916,  formal  filing  being  de- 
ferred at  the  request  of  the  District  Attorney  for  time  to  arrange 
such  a  disposition  of  the  confiscated  opium  as  would  most  effectively 
benefit  China: 

The  defendant  pleads  guilty  to  an  information  charging  him  with 
"the  crime  of  importing  opium  into  China,  in  that  the  said  Charles 
A.  Biddle,  on  or  about  the  21st  day  of  January,  nineteen  hundred 
and  sixteen,  at  the  port  of  Shanghai,  in  the  Republic  of  China,  and 
within  the  jurisdiction  of  said  Court,  did  unlawfully  import  about 
seven  hundred  and  ninety-five  pounds  of  Opium." 

'  U.  S.  V.  Beeks,  Cause  No.  446,  Crim.  No.  113. 


UNITED  STATES  V.  BIDDLE,  FEB.  24,  1916.  523 

This  prosecution  is  based  upon  the  Act  of  Congress  of  February 
23,  1887,  -  which  provides  that 

"Citizens  of  the  United  States  offending  against  the  provisions  of 
this  section  shall  be  deemed  guilty  of  a  misdemeanor  and,  upon 
conviction  thereof,  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars  nor  less  than  fifty  dollars,  or  by  both  such  punish- 
ments, in  the  discretion  of  the  court." 

We  have  elsewhere  ^  commented  on  the  inadequacy  of  this  penalty 
and  the  apparent  mistake  in  drafting  the  statute;  in  view  of  which 
we  consider  the  maximum  penalty  little  enough  notwithstanding  the 
plea  of  guilty. 

The  Act  above  cited  further  provides 

"Every  package  of  opium  or  package  containing  opium,  either  in 
whole  or  in  part,  brought,  taken,  or  transported,  trafficked,  or  dealt 
in  contrary  to  the  provisions  of  this  section,  shall  be  forfeited  to 
the  United   States,  for  the  benefit  of  the  Emperor  of  China."  * 

The  State  Department,  instructing  the  American  Minister  to  China 
soon  after  the  passage  of  this  Act,  gave  what  seems  to  us  the 
natural  interpretation  thereof,  viz.,  that  where  one  is  convicted  there- 
under 

"the  confiscation  of  the  opium,  if  any,  found  in  his  possession,  and 
illegally  imported  or  dealt  in,  to  the  use  of  the  Emperor  of  China, 
would  be  an  incident  of  his  sentence;  and  the  confiscated  property 
would  accordingly  be  delivered  to  the  Chinese  authorities."  ° 

For  the  "Emperor  of  China"  we  must  now  substitute  the  Republic 
of  China  which,  since  the  passage  of  the  act  in  question,  has  suc- 
ceeded to  the  sovereign  powers  and  prerogatives  of  the  former. 
The  proper  "Chinese  authorities,"  to  whom  delivery  should  be  made, 
appear  to  be  the  officials  of  the  Chinese  Customs  service  by  whom 
the  opium  in  question  was  seized  and  from  whom  the  Marshal  of 
this  Court  received  it.  The  Chinese  government,  thru  its  representa- 
tive, agrees  that  the  usual  reward,  which  these  officials  have  so  fully 
earned  in  this  case,  shall  be  paid  them. 

The  defendant  is  therefore  sentenced  to  pay  a  fine  of  five  hundred 
dollars  ($500)  United  States  currency,  with  subsidiary  imprison- 
ment according  to  law  in  case  of  non-payment,  together  with  the 
costs  of  this  prosecution. 

The  opium  seized  and  taken  from  the  defendant  is  hereby  declared 
to  be  forfeited  to  the  United  States  for  the  benefit  of  the  Republic 
of  China  and  is  ordered  to  be  delivered  to  the  Customs  authorities 
thereof  thru  the  local  Chinese  Commissioner  of  Foreign   Affairs. 

In  U.  S.  V.  Woodward,  Cause  No.  631  the  following  sentence  was 
imposed  by  the  same  Judge  on  February  1.  1918: 

'24  U.  S.  Stats,  at  Large,  sess.  II,  Ch.  210,  sec.  3,  p.  409;   Suppl. 
to  U.   S.  Rev.   Stats.   Ch.  210,  sec.  3. 
'  U.  S.  v.  Beeks,  ante,  p.  520. 
*  Act  cited  in  note  2,  supra,  sec.   3. 
°  Moore,   International   Law   Digest,   II,   652. 


524  I  EXTRATERRITORIAL  CASES. 

The  accused  pleads  guilty  to  an  information  filed  January  30, 
1918,  charging  him  with 

"*  *  *  the  crime  of  importing  opium  into  China,  in  that  the 
said  Alphonse  Maire  Tracy  Woodward,  on  or  about  the  nineteenth 
day  of  December,  nineteen  hundred  and  seventeen,  at  the  port  of 
Shanghai,  in  the  Republic  of  China,  and  within  the  jurisdiction  of 
said  Court,  did  unlawfully  import  about  four  thousand  four  hundred 
pounds  of  opium,  and  thereby  was  and  is  guilty  of  the  crime  of  im- 
porting opium  into  China:  against  the  provisions  of  the  Treaty 
between  the  United  States  of  America  and  China  concluded  November 
17,  1880,  Article  II,  and  against  the  laws  of  the  United  States  of 
America,  Chapter  210,  Volume  24,  Statutes  at  Large." 

We  have  already  called  attention,  in  other  judgments,  to  the  evident 
clerical  omission  in  drafting  the  statute  under  which  this  prosecu- 
tion is  brought.  We  again  take  the  oppoi'tunity  of  pointing  out  the 
inadequacy  of  the  penalty  and  to  urge  upon  the  proper  authorities  the 
importance  of  an  early  amendment.  Copies  of  this  judgment  are  now 
directed  to  be  forwarded  to  the  Chairmen  of  the  Senate  and  House 
Committees  of  Congress  on  Foreign  Relations  and  Affairs,  as  well 
as  to  the  Departments  of  State  and  of  Justice. 

It  appears  that  no  opium  was  found  in  defendant's  possession  upon 
his  delivery  to  the  officers  of  this  Court.  A  representative  of  the 
Chinese  Customs  Service  appeared  in  Court  at  defendant's  arraign- 
ment and  stated  that  all  of  said  opium  was  seized  by  said  Customs 
officials  and  is  now  in  their  possession.  As  it  has  never  reached 
the  American  authorities  this  Court  has  acquired  no  jurisdiction 
thereover  and  can  make  no  order  concerning  the  opium. 

The  accused  is  accordingly  sentenced  to  pay  a  fine  of  five  hundred 
dollars  ($500),  United  States  Currency,  with  subsidiary  imprison- 
ment according  to  law  in  case  of  non-payment,  together  with  the 
costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Warren  J.  Thacher's  Will. 

[Cause  No.  421;   filed  January  10,   1916.] 
SYLLABUS. 

(By  the  Court.) 

1.  INTESTATE  SUCCESSION:   The  law  in  force  in  this  jurisdiction  as 

regards  the  distribution  of  personalty  is  that  contained  in  the 
act  of  Congress  of  March  3,  1901. 

2.  Id. :   Id.:    Provisions  of  the  act  of  June   6,   1900,  not  inconsistent 

with   the   above,   may   also   be   applied   where   parties   entitled 
thereto  claim  benefits  under  them. 

3.  Id.  :  A  Forced  Heir,  having  notice  of  the  provisions  of  a  will  which 

ignores  him,  but  making  no  claim  to  share  in  the  estate,  will 
be  deemed  to  have  waived  his  statutory  privilege. 


IN  RE  THACHER'S  WILL,  JAN.   10,   1916.  525 

Dr.  F.  E.  Hinckley  appeared  for  the  Executor. 
No  appearance  for  the  other  parties  interested. 


LOBINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  executor's 
petition  for  final  distribution  and  his  own  discharge  pur- 
suant to  the  repor-ts  herein  filed  by  him  under  date  of 
November  4  and  December  28,  1915,  respectively.  Said 
petition  set  forth  that  the  executor  has  on  hand  the  sum 
of  Taels  457.37  which,  together  with  any  balance  of  Court 
fees,  he  asks  to  have  distributed.  This  petition  calls  for 
an  interpretation  and  enforcement  of  the  will's  provisions. 

That  instrument,  after  providing  for  the  payment  of 
debts  and  funeral  expenses,  bequeaths  to  the  testator's  wife 
"all  household  furniture,"  etc.  and  "her  share  by  law,"  and 
all  remaining  property  to  testator's  mother.  By  the  phrase 
"her  share  by  law"  the  testator  evidently  meant  the  share 
which  the  wife  would  have  received  had  he  died  intestate. 

In  the  early  days  of  the  court  it  was  thought  that  the 
law  governing  intestate  succession  in  this  jurisdiction  was 
"the  common  law."  ^  But  the  recognition  by  the  Court 
of  Appeals  ^  as  effective  here,  of  the  special  acts  of  Con- 
gress, has  rendered  available  abundant  legislation  on  that 
subject  and  made  it  unnecessary  to  invoke  the  common 
law  thereon.^ 


^In  re  Roberts'  Will,  Estate  No.  10,  May  15,  1907;  In  re  Estate  of 
jeanie  W.  Woodbridge,  deceased,  No.   140,  June  12,   1913. 
'  Biddle  v.  U.  S.,  ante,  p.  120. 
'  In  many  cases,  of  course,  the  statute  has  made  no  change.     Thus, 

"Under  the  common  law  it  is  the  right  of  the  husband  of  the 
intestate  to  enjoy  exclusively  the  effects  of  his  deceased  wife.  That 
is,  the  personal  property  of  a  woman  dying  in  coverture  is  the 
property  of  her  husband.  This  principle  applies  whether  or  not 
children  survived  her.  Blackstone,  Commentaries,  I,  515;  Woerner, 
American  Law  of  Administration  (2nd  ed.)  I,  p.  133."  Thayer,  J., 
In  re  Estate  of  Jeanie  W.  Woodbridge,  deceased.  No.  140,  June  12, 
1913. 

The  same  rule  prevails  under  the  statute  (31  U.  S.  Statutes  at 
Large,  sess.  II,  Ch.  854,  sec.  1160;  In  re  Estate  of  Abagail  A.  Sut- 
terle,  deceased.  No.  284,  Jan.  9,  1920).  Under  the  prior  statute  the 
surviving  husband  received  the  whole,  only  if  there  were  no  issue; 
otherwise  he  received  one  half.  (31  U.  S.  Stats,  at  Large,  sess.  I, 
Ch.  786,  tit.  Ill,  sec.  169  [4],  p.  515.) 


526  I  EXTRATERRITORIAL  CASES. 

The  latest  of  these  acts,  as  regards  the  distribution  of 
personalty,  appears  to  be  the  following : 

"If  there  be  a  widow  and  a  child  or  children,  or  a  descendant  or 
descendants  from  a  child,  the  widow  shall  have  one-third  only."* 

Since  the  deceased  left  surviving  children  as  w^ell  as 
a  widovi^,  this  provision  governs  the  case. 

The  survival  of  children  not  mentioned  suggests  the 
question  whether  the  Court  is  required  to  apply  stm  sponte 
that  provision  of  the  act  of  Congress  of  June  6,  1900,  which 
virtually  adopts  the  civil  law  doctrine  of  compulsory  heirs 
by  providing  that  children  not  named  in  a  will 

"shall  be  entitled  to  such  portion  of  the  estate  of  the  testator,  real 
and  personal,  as  if  he  had  died  intestate,  and  the  same  shall  be 
assigned  to  them."  ° 

The  provision  does  not  appear  in  the  act  passed  by 
Congress  nearly  one  year  later  but  that  of  itself  would 
not  necessarily  prevent  its  application  here  so  long  as  the 
later  act  contains  no  inconsistent  provision.  But  if  the 
parties  "entitled  to  such  portion"  fail  to  invoke  the  pro- 
vision must  the  Court  do  so?  The  Spanish  Civil  Code,° 
indeed,  provides  expressly  that 

"All  renunciations  or  compromises  with  regard  to  a  future  legal 
portion  between  the  persons  owing  it  and  their  heirs  by  force  of  law 
are  void." 

But  we  find  no  similar  provision  in  the  legislation  of 
Congress  and  in  Louisiana,  likewise  a  civil  law  jurisdiction, 
it  is  expressly  held  that  the  forced  heir  may  waive  his 
rights." 

In  this  case,  the  children  have  all  attained  majority  and 
have  had  notice  of  this  proceeding,  some  of  them  appearing 
in  Court  during  its  pendency.  None  of  them  asked  a 
share  in  the  estate  or  sought  in  any  way  to  prevent  the 
execution  of  the  will  according  to  its  literal  terms.     The 


'Act  of  Congress  of  March  3,  1901,  sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  375   (at  p.  1249). 

Under  the  act  of  June  6,  1900,  she  could  claim  "all  articles  of  her 
apparel  and  ornament."  (31  U.  S.  Stats,  at  Large,  sess.  I,  Ch.  786, 
tit.  Ill,  sec.  169  [1],  p.  514.) 

'31  U.  S.  Stats,  at  Large,  sess.  I,  Ch.  786,  tit.  Ill,  sec.  143. 

•Art.  816. 

'Nolan  V.  New,  31  La.  Ann.  552. 


TAM  WA  V.  BOULON,  JAN.  13,  1916.  527 

only  inference  we  can  draw  from  this  is  that  they  are 
satisfied  to  have  the  property  disposed  of  as  the  will  directs. 
For,  assuming  that  they  are  as  the  statute  says,  "entitled" 
to  a  share  in  the  estate,  we  still  think  it  incumbent  upon 
them  to  claim  their  portion  if  they  desire  to  share  in  the 
distribution,  and  we  must  construe  their  silence  as  amount- 
ing to  an  acquiescence  in  the  will  as  drawn. 

It  is  therefore  considered  and  decreed  that  the  household 
furniture  and  one-third  of  all  property  (which  consists  of 
money)  in  the  hands  of  the  executor  be  distributed  to  the 
testator's  widow  and  the  balance  to  his  mother,  Mrs. 
Gorham  H.  Taylor;  and  that  upon  the  filing  of  proper 
receipts  from  the  said  beneficiaries  the  executor  stand 
discharged  and  the  administration  closed. 

After  the  payment  of  all  costs,  the  balance,  if  any,  of 
the  deposit  in  the  hands  of  the  Clerk,  may  be  distributed  to 
the  executor  in  compensation  for  his  services,  no  other 
provision  being  apparently  made  for  that  purpose. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Tam  Wa,  Plaintiff  and  Appellee,  v.  F.  G.  Boulon,  Defendant 
and  Appellant. 

[Cause  No.  474;  filed  January  13,  1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  AN  APPEAL  is  not  a  new  and  independent  proceeding  but  a  con- 

tinuation of  the  original  suit. 

2.  Id.  :  Trial  de  Novo  on  appeal  does  not  necessarily  include  the  re- 

ception of  new  evidence;  the  appellate  hearing  may  be  on  the 
evidence  taken  below. 

3.  Id.  :    Id.  :    Record.     The   requirement  that  "the   evidence   shall   be 

taken  down  in  writing"  in  Consular  Courts  renders  unnecessary 
the  practice  of  taking  new  evidence  on  appeals  which  prevails 
in  reviewing  judgments  of  inferior  courts  in  the  United  States. 

4.  Id.  :  Id.  :  New  Evidence.     Under  the  then  "existing  procedure  pre- 

scribed for  Consular  Courts  in  China,"  which  is  made  the  basis 
for  the  practice  in  this  Court  by  Sec.  5  of  its  organic  act,  the 
appellate  tribunal  reviews  the  cause  on  the  evidence  taken  below, 
with  discretion  to  take  new  evidence  in  furtherance  of  justice. 

5.  Id.  :     Tho  the  Judge  of  this  Court  is  expressly  authorized  by  said 

section  "to  modify  and  supplement"  said  rules  of  procedure,  it  is 
not  apparent  that  any  improvement  in  the  due  administration 


528  I  EXTRATERRITORIAL  CASES. 

of  justice  would   result  from  changing  said  rules  in   the  par- 
ticular above  mentioned. 
6.  Id.  :  Stare  Decisis.     The  doctrine  of  Sexton  v.  United  States,  ante, 
p.  180,  adhered  to. 

APPEAL   from  the   Consular   Court  for  the   District   of 
Shanghai. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  the 
motion. 

Messrs.  White-Cooper  &  Masters,  by  Mr.  Masters,  contra. 

LOBINGIER,  J.: 

This  is  a  motion  for  a  hearing  de  novo  of  a  cause  orig- 
inally tried  and  adjudicated  in  the  Consular  Court  for  the 
District  of  Shanghai,  a  transcript  of  the  evidence  in  which 
is  included  in  the  record.  A  similar  motion  was  denied 
by  a  former  Judge  of  this  Court  in  another  cause  '  and 
the  decision  there  announced  we  are  now  asked  to  overrule. 
The  question  is  of  such  importance  to  the  practice  in  this 
jurisdiction  that  we  have  deemed  it  advisable  to  reexamine 
the  authorities  and  reasons  upon  which  the  said  ruling  rests. 

The  organic  act  of  this  Court  provides  inter  alia 

"From  all  final  judgments  of  the  consular  court  either  party  shall 
have  the  right  of  appeal  to  the  United  States  Court  for  China."* 

This  is  the  sole  method  of  review;  the  statute  does  not 
provide  for  a  writ  of  error  or  of  certiorari  or  for  any  other 
proceeding  except  an  appeal.  Now  the  characteristic  of 
the  latter  is  that  it  is  a  continuation  of  the  original  suit ;  ^ 
it  is  not  a  new  and  independent  proceeding  like  the  other 
modes  of  review.  It  is  true  that  an  appeal  often  includes 
a  trial  de  novo,  i.  e.,  in  the  appellate  court.*  But  this  does 
not  mean  a  new  proceeding;  it  is  merely  a  rehearing  of 
the  same  cause. 

The  sole  question  here  is  whether  new  evidence  must  be 
taken.     For,  while  on  its  face  appellant's  motion  is  merely 


'  Sexton  V.  U.  S.,  ante,  p.  180. 

'Act  of  Congress  of  June  30,  1906;  34  U.  S,  Stats,  at  Large,  Pt. 
I,  Ch.  3934,  sec.  2. 

'  Corpus  Juris,  III,  320. 

'  See,  e.  g.,  Vroman  v.  Dewey,  22  Wis.,  323. 


TAM  WA  V.  BOULON,  JAN.  13,  1916.  529 

for  a  trial  cle  novo,  it  appears  from  the  argument  that  the 
real  purpose  is  to  compel  the  appellee,  and  enable  the 
appellant,  to  call  witnesses  and  present  evidence  as  if  the 
cause  had  never  been  tried.  This,  however,  involves  much 
more  that  a  new  hearing  which  could  be  had  on  the  evi- 
dence already  taken  and  which,  as  we  have  seen,  is  incident 
to  all  appeals. 

Appellant's  counsel  contends  that  the  organic  act  fails 
to  provide  a  method  of  procedure  on  appeal  and  that  we 
should,  therefore,  follow  the  analogy  of  appeals  to  courts 
of  general  jurisdiction  in  the  United  States  from  inferior 
courts  like  Justices  of  the  Peace.  But  we  are  not  sure  that, 
even  if  the  analogy  were  followed,  it  would  aid  appellant's 
contention.  For  even  in  such  cases  appeals  follow  the 
general  rule.  They  are  not  new  proceedings  but  rather 
continuations  of  the  original ;  the  identity  of  the  issues  must 
generally  be  preserved  in  the  appellate  Court ; ''  and  new 
pleadings  are  not  usually  filed.'' 

It  is  true  that  new  evidence  is  generally  taken  upon  such 
appeals;  but  this  is  rendered  necessary  by  the  fact  that 
the  evidence  is  rarely,  if  ever,  preserved  in  the  lower  court 
which  is  almost  never  a  court  of  record  nor  provided  with 
an  official  stenographer,  so  that  the  evidence  is  not  taken 
down,  and  the  only  possible  method  of  providing  a  new 
hearing  on  appeal  is  to  call  the  witnesses  again.  But  that 
this  is  rather  a  result  of  the  necessities  of  the  situation 
than  an  essential  incident  of  the  appeals  seems  clear  from 
the  fact  that  when  the  evidence  is  preserved,  as  when  de- 
positions are  taken,  it  is  received  in  the  appellate  court 
without  requiring  the  presence  of  the  witnesses.'^ 

'  See  Philippine  Practice,  pp.  45,  46  where  the  authorities  are  col- 
lected. 

*  24  Cyc,  729. 

'24  Cyc,  740; 

"There  was  no  error  in  permitting  the  deposition  taken  to  be 
read  in  the  trial  before  the  justice  of  the  peace,  to  be  read  on  the 
trial  in  the  circuit  court.  It  was  taken  in  the  cause  pending  between 
the  parties,  upon  due  notice,  in  strict  accordance  with  the  provisions 
of  the  statute  and  it  was  competent  to  read  it  on  the  trial  of  the 
cause  de  novo  in  the  circuit  court  on  defendant's  appeal."  Jarret  v. 
Phillips,  90  111.,  238. 

14008    O.    W. 34 


530  I  EXTRATERRITORIAL  CASES. 

But  the  situation  which  prevents  the  evidence  from  being 
preserved  in  the  courts  of  inferior  jurisdiction  in  the 
United  States  is  not  duplicated  in  the  court  from  which 
the  pending  appeal  is  taken.  For  the  statute  expressly  re- 
quires that 

"In  all  cases,  criminal  and  civil,  the  evidence  shall  be  taken  down 
in  writing  in  open  court,  under  such  regulations  as  may  be  made 
for  that  purpose;  and  all  objections  to  the  competency  or  character 
of  testimony  shall  be  noted,  with  the  ruling  in  all  such  cases,  and 
the  evidence  shall  be  part  of  the  case." ' 

It  is  by  virtue  of  this  provision  that  the  evidence  in  this 
case  was  preserved  and  is  now  before  us,  and  the  effect 
of  the  pending  motion  is  to  ask  us  to  disregard  all  that  was 
done  in  pursuance  thereof.  Yet  it  is  evident,  both  from 
the  context  and  from  what  will  be  noted  hereafter,  that  the 
main  purpose  of  the  rule  was  to  preserve  the  evidence  for 
use  on  appeal.  The  testimony  was  taken  down  in  long-hand 
and  at  considerable  cost  of  time  and  labor,  all  of  which 
would  be  fruitless  unless  the  product  of  it  could  be  utilized 
in  the  appellate  court.  For  the  Consul  himself  no  more 
needs  to  have  the  evidence  preserved  in  order  to  enable  him 
to  decide  the  cause  than  does  a  Justice  of  the  Peace.  The 
laborious  transcription  is  plainly  for  the  benefit  of  the 
appellate  court  alone.  Consequently  it  seems  to  us  that  the 
basic  reason  which  requires  appellate  courts  in  the  United 
States  to  take  new  evidence  is  entirely  wanting  in  the  prac- 
tice here.  There  the  appeal  is  from  inferior  courts  not  of 
record;  while  it  has  been  expressly  decided  that  a  court 
like  that  from  which  this  appeal  comes  is  a  court  of  record." 

Moreover  the  requirement  that  "the  evidence  shall  be 
part  of  the  case"  appears  to  be  significant.  For  if,  as  we 
have  seen,  the  appeal  is  merely  a  continuation  of  the  case 
of  which  the  evidence  taken  below  is  a  part,  how  can  the 
"case"  be  heard  on  appeal  without  considering  said  evi- 
dence ? 


•  U.  S.  Rev.  Stats.,  sec.  4097. 

"All  testimony  must  be  taken  in  writing  in  open  court,  by  the 
consul  or  his  order,  and  signed  by  the  witness,  after  being  read 
over  to  him  for  his  approval  and  correction,  and  it  shall  form  part 
of  the  papers  in  the  case."  Consular  Court  Regulations  (1864), 
sec.  87. 

*  Newman  v.  Basch,  80  Misc.,  622,  152  N.  Y.  S.,  456,  ante,  p.  469. 


TAM  WA  V.  BOULON,  JAN.  13,  1916.  531 

Nor  can  we  agree  with  counsel's  further  contention  that 
the  organic  act  had  failed  to  provide  a  procedure  on  appeal. 
For  said  act  contains  the  following  clause : 

"  *  *  *  the  procedure  of  the  said  court  shall  be  in  accordance, 
so  far  as  practicable,  with  the  existing  procedure  prescribed  for 
consular  courts  in  China  in  accordance  with  the  Revised  Statutes 
of  the  United  States:  provided,  however,  That  the  judge  of  the  said 
United  States  Court  for  China  shall  have  authority  from  time  to 
time  to  modify  and  supplement  said   rules  of  procedure."" 

It  will  be  noticed  that  the  language  used  is  "procedure 
prescribed  for  consular  courts  in  China;"  if  it  had  been 
procedure  prescribed  "in"  such  courts  it  might  be  argued 
that  this  included  only  the  rules  governing  a  cause  while 
pending  in  the  consular  court;  but  with  the  language  as 
it  is  it  seems  fair  to  include  the  procedure  prescribed  on 
appeal  from  said  courts.  It  is  true,  as  appellant's  counsel 
suggests  in  argument,  that  such  procedure  is  no  longer  in 
vogue;  but  nevertheless  the  organic  act  makes  it  a  model 
for  the  procedure  to  be  followed  by  the  newly  established 
court  and  to  that  extent  at  least  the  old  procedure  is  pre- 
served. 

Now  the  methods  of  appeal  for  the  then  "existing  pro- 
cedure for  consular  courts  in  China,  in  accordance  with 
the  Revised  Statutes"  were  two: 

1.  To  the  Minister  in  civil  cases  where  the  amount  in  controversy 
exceeded  $500  and  was  less  than  $2,500;  '^ 

2.  To  the  Circuit  Court  for  the  District  of  California  where  said 
amount   exceeded   $2,500." 

But  in  either  case  the  appeal  was  heard  upon  the  evidence 
preserved  and  transmitted  from  the  consular  court,  except 
that  in  appeals  to  the  circuit  court  it  was  expressly  pro- 
vided that  "no  new  evidence  shall  be  received  on  the  hear- 
ing of  the  appeal,"  ^^  while  in  appeals  to  the  Minister,  he 
was  fully  empowered  to  decide  finally  any  case  on  the 
evidence  which  came  up  with  it,  but  might  "hear  the  parties 
further"  if  he  thought  justice  would  be  promoted  thereby.^* 

Now  we  repeat  that,  while  this  procedure  is  no  longer 


"34  U.  S.   Stats,  at  Large,  Pt.  I,  p.  816,  sec.  5. 
"U.   S.   Rev.   Stats.,  sec.   4092. 
"Id.,   sec.   4093. 
"Id.,  sec.  4093. 
"Id.,  sec.  4091. 


532  I  EXTRATERRITORIAL  CASES. 

actually  in  vogue,  still,  it  is  expressly  prescribed  as  a  guide 
for  this  Court  to  follow  and  we  see  nothing  in  it  which 
would  require  us  to  take  over  again  the  testimony  of  the 
witnesses  which  has  been  preserved  in  accordance  with  the 
statute  in  the  lower  court.  The  most  that  can  be  said  is 
that  the  discretion  which  the  old  procedure  vests  in  the 
Minister  of  "hearing  the  parties  further  if  he  thinks  justice 
will  be  promoted  thereby"  is  carried  forward  and  con- 
ferred upon  this  Court.  Doubtless  we  have  such  discretion. 
It  is  sometimes  vested  in  courts  of  last  resort.^^  But  it 
is  exercised  only  in  exceptional  cases  and  it  is  not  con- 
tended that  this  is  one. 

Finally,  if  there  were  any  doubt  as  to  what  is  meant  by 
the  words  "existing  procedure,"  it  would  not  follow  that 
appellant's  contention  should  be  adopted.  For  the  same 
statute,  as  we  have  seen,  gives  the  Judge  of  this  Court 
authority  "to  modify  and  supplement  said  rules  of  pro- 
cedure" and  if  that  were  necessary  we  should  be  disposed 
to  exercise  said  authority  so  as  to  make  the  procedure  such 
as  we  have  construed  the  old  rules  to  prescribe.  For  on 
grounds  of  public  policy  we  consider  it  unwise  to  require 
parties  who  have  once  presented  their  witnesses  to  go  to 
the  trouble  and  expense  of  calling  them  a  second  time  in 
the  same  cause.  To  take  an  extreme  case  in  order  to 
test  the  rule,  we  may  suppose  an  appeal  from  the  Consular 
District  of  Chungking,  distant  some  three  weeks  of  travel 
from  the  place  where  this  Court  holds  most  of  its  sessions. 
If  the  rule  contended  for  by  the  appellant  were  enforced,  the 
judgment  debtor  in  a  small  case  adjudicated  at  Chungking 
might  practically  nullify  the  judgment  by  taking  an  appeal 
and  insisting  upon  plaintiff  incurring  the  prohibitive  ex- 
pense of  bringing  his  witnesses  all  that  distance  in  order 
to  have  the  case  reheard.  It  was  evidently  just  that  state 
of  affairs  which  the  old  procedure  aimed  to  prevent. 

It  is  true,  as  appellant's  counsel  suggests,  that  this  Court 
might  go  to  the  place  of  trial  and  hold  the  hearing  there, 
but  that  would  merely  be  shifting  the  trouble  and  expense 
from  the  appellee  to  the  Court  and  its  officials.  It  is  also 
true  that  there  are  certain  advantages  in  hearing  and  see- 


"  For  example,  the  Supreme  Court  of  the  Philippines.     See  Wor- 
cester V.  Bucknall  Steamship  Lines,  22  Philippine,  292. 


ALLEN  V.  ALLEN,  JAN.  29,  1916.  533 

ing  the  witnesses  but  all  appellate  courts  of  last  resort 
are  deprived  of  that  advantage,  which  would  be  more  that 
off-set  by  the  hardships  entailed  upon  litigants  of  adopt- 
ing the  other  plan  and  which  would,  in  this  jurisdiction, 
practically  provide  two  trial  courts  where  evidently  but 
one  was  intended.  We  think  also  that  there  is  some  merit 
in  the  contention  of  appellee's  counsel  that  recalling  wit- 
nesses after  they  have  once  testified  gives  opportunity  for 
cl\anging  testimony,  that  the  witnesses'  original  statements 
are  apt  to  be  the  more  reliable,  and  that  this  also  tends  to 
off -set  any  advantage  from  observing  them  while  testifying. 
Finally,  it  should  not  be  forgotten  that  the  rule  con- 
tended for  by  appellant's  counsel  is  contrary  to  the  practice 
prevailing  in  the  British  Supreme  Court  for  China  which 
was  to  some  extent  the  model  upon  which  this  Court  was  or- 
ganized. On  the  whole,  therefore,  we  are  of  the  opinion 
that  the  conclusions  reached  in  the  former  decision  of  this 
Court  are  in  accordance  with  the  statute  and  the  author- 
ities and  announce  a  rule  more  likely  to  promote  the  ends 
of  justice  than  would  the  contrary  one.  The  doctrine  of 
said  decision  is  therefore  adhered  to  so  far  as  it  holds 
that  new  evidence  will  not  be  taken  on  appeal  except  in 
furtherance  of  justice.  For  it  is  consistent  with  that  de- 
cision to  recognize  that  cases  might  arise  where,  thru  un- 
avoidable casualty  or  misfortune,  evidence  was  omitted 
below,  which,  without  prejudice  to  the  adverse  party,  might 
be  supplied  on  appeal.  But  no  such  situation  is  suggested 
here  and  the  motion,  so  far  as  it  seeks  the  taking  of  new 
evidence,  is  accordingly 

OVERRULED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

John  Thomas  Allen,  Petitioner,  v.  Susan  Allen, 

Respondent. 

[Cause  No.  435;   filed  January  29,   1916.] 

ON  MOTION  TO  MODIFY  DECREE. 

SYLLABUS. 
(By  the  Editor.) 

1.  ADULTERY:    ALIMONY  awarded  in  a  decree  of  divorce  a  mensa  et 
thoro  will  be  set  aside  for  the  subsequent  adultery  of  the  wife 


534  I  EXTRATERRITORIAL  CASES. 

but  the  evidence  in  support  thereof  must  be  clear  and  convinc- 
ing. 
2.  Id.:  Evidence  examined  and  found  insufficient  to  justify  such  relief 
in  the  case  at  bar. 

Arthur  S.  Allan,  Esq.,  for  the  motion. 
Joseph  W.  Rice,  Esq.,  contra. 

LOBINGIER,  J.: 

The  petitioner  presents  a  motion  to  modify  the  decree 
herein  rendered  on  June  10,  1915,  awarding  alimony  to 
the  respondent  who,  it  is  alleged,  since  the  date  of  said 
decree  has,  on  three  different  occasions,  had  carnal  in- 
tercourse with  others  than  the  petitioner.  As  this  is  the 
only  ground  set  forth,  the  first  question  to  be  considered 
is  whether  it  is  sufficient  in  Jaw  to  justify  the  relief 
sought.  The  respondent's  counsel  contends  that  there  is 
"no  adjudication,  in  America,  to  the  effect  that  the  wife 
will  be  deprived  of  alimiony  for  adultery  subsequent  to 
its  allowance."  But  there  appear  to  be  several  such  ad- 
judications,^ and  a  similar  doctrine  prevails  under  the  civil 
law.2  We  have  no  doubt,  therefore,  of  the  power  of  this 
Court  to  modify  the  decree  as  prayed  by  the  petitioner, 
nor  of  its  duty  to  do  so  in  a  proper  case;  but  it  is  never- 
theless true,  as  respondent's  counsel  urges,  that  the  Anglo- 

'  Bishop,  Mar.  &  Div.  (6th  ed.),  I,  sec.  574. 

New  Jersey.  "*  *  *  Under  a  divorce  a  mensa  et  thoro  the 
marriage  relation  still  exists,  and  with  it  the  duty  of  chastity.  Such 
a  divorce  is  not  a  license  to  the  wife  to  indulge  in  sexual  connection 
with  another  man  *  *  *"  G—  v.  G— ,  67  N.  J.  Eq.,  30,  56  Atl. 
Rep.,  736  at  p.  740. 

New  York.     Ronan  v.  Ronan,  32  Misc.,  467,  66  N.  Y.  Sup.,  799. 

West  Virginia.  Cariens  v.  Cariens,  50  W.  Va.,  113,  40  S.  E.,  335, 
55  L.  R.  A.,  930. 

Wisconsin.  Weber  v.  Weber,  153  Wis.,  132;  140  N.  W.,  1052,  45 
L.  R.  A.  (N.  S.),  875,  where  an  exhaustive  note  is  appended. 

Smith  v.  Smith,  45  Ala.,  264,  seems  to  be  based  mainly  on  the  code 
of  that  state  and  to  deny  to  its  tribunals  the  general  powers  of  the 
ecclesiastical  courts  which  we  have  found  to  be  vested  in  this  court. 
Cavanagh  v.  Worden,  ante,  p.  317,  citing  Wightman  v.  Wightman, 
4  Johns  Ch.  (N.  Y.),  343. 

'  Manresa,  Commentaries  on  Spanish  Civil  Code,  I,  571;  Marcelle 
Planiol,  Droit  Civil,  III,  sec.  642  et  seq. 


ALLEN  V.  ALLEN,  JAN.  29,  1916.  535 

American  courts  have  shown  considerable  reluctance  in 
granting  such  relief  and  require  strong  showing  therefor.' 
It  follows  too  that  the  charge  of  misconduct  must  be  sup- 
ported by  clear  and  convincing  evidence,  for  the  result 
is  the  wife's  loss  not  only  of  sustenance  but  of  reputa- 
tion as  well.  We  have,  accordingly,  to  determine  whether 
the  showing  in  this  case  meets  the  requirements  of  the 
authorities  above  cited. 

II. 

To  prove  his  allegations  the  petitioner  calls  a  detective 
and  another  who  claims  to  have  accompanied  him,  both 
of  whom  say  that  on  three  successive  nights  in  July  last 
they  visited  the  place  where  respondent  lived  (which  was 
a  hat  store)  and  on  each  occasion  found  her  in  a  ground 
floor  room  on  a  couch  with  a  man  other  than  petitioner, 
both  being  sound  asleep.  The  detective  states  that  he  was 
paid  by  petitioner  to  "observe"  (i.  e.,  shadow)  the  re- 
spondent and  that  he  paid  his  companion.  The  latter  states 
that  he  was  not  paid  but  was  merely  returning  similar 
accommodations  which  had  been  extended  to  him.  The 
detective  states  that  they  were  able  to  enter  the  room  as 
the  result  of  a  previous  arrangement  with  the  "boy"  em- 
ployed there,  who  left  the  front  door  unlocked  but  was 
not  himself  present  when  they  entered.  The  companion, 
however,  testifies  that  they  were  admitted  by  som.eone 
from  within  responding  to  a  tapping  on  the  door  and  altho 
said  door  opened  directly  from  the  street  into  the  room  in 
question,  neither  the  noise  of  opening  it  nor  the  flashing 
of  the  light  on  any  of  the  three  occasions  appears  to  have 
disturbed  the  sleepers  who,  we  are  told,  were  unaware  of 
the  presence  of  outsiders.     Finally,   altho  the  man  who 


'A.  &  E.  Enc.  of  Law  (2nd  ed.),  H,  137,  note  2;  Cole  v.  Cole,  142 
111.,  19,  19  L.  R.  A.,  811. 

In  Cariens  v.  Cariens,  50  W.  Va.,  113,  40  S.  E.,  335,  55  L.  R.  A., 
930,  cited  for  petitioner,  altho  the  wife  was  guilty  of  serious  mis- 
conduct the  court  denied  an  application  similar  to  this,  stating: 
"Under  the  circumstances  we  do  not  find  it  a  sufficient  cause  to  re- 
lease him  from  the  payment  of  this  alimony.  The  bill,  decree  and 
evidence  settle  it  that  in  the  start  the  husband  was  in  the  wrong. 
This  is  res  judicata." 


536  I  EXTRATERRITORIAL  CASES. 

slept  on  the  couch  the  second  and  third  nights  was  recognized 
by  the  detective  he  was  not  called  as  a  witness,  nor  is  his 
absence  accounted  for. 

Whether  the  above  showing  would  be  sufficient  if  un- 
denied,  however,  we  need  not  determine,  for  it  is  denied 
positively  and  categorically  by  the  respondent  who  says 
that  while  she  occupied  the  premises  in  question  during 
the  absence  of  the  proprietress,  she  slept  upstairs  at  the 
time  referred  to  by  petitioner's  witnesses  instead  of  in 
the  room  mentioned  by  them.  In  view  of  the  possibilities 
of  mistaken  identity  resulting  from  the  hasty  examination 
which  petitioner's  witnesses  claim  to  have  made,  and  the 
chances  of  their  having  taken  someone  else  for  the  respond- 
ent in  the  room  below,  it  would  seem  somewhat  hazardous 
to  base  a  finding  solely  upon  the  testimony  of  said 
witnesses,  regardless  of  the  discrepancies  above  mentioned. 
Moreover  the  proprietress  of  the  premises,  in  whose 
absence  the  respondent  occupied  them,  corroborates  the 
latter  in  testifying  that  there  was  no  "boy"  employed 
at  the  place,  and  that  the  door  thru  which  petitioner's 
witnesses  claim  to  have  entered  was  fitted  with  an  alarm 
bell  which  would  ring  loudly  upon  being  opened.  Finally, 
altho  the  misconduct  charged  is  claimed  to  have  occurred 
in  July  and  would  naturally  have  been  reported  promptly 
to  the  petitioner  who  was  paying  for  the  procurement  of 
the  evidence,  the  latter  failed  to  mention  it  in  conversation 
with  a  disinterested  witness  (Williams)  so  late  as  last 
month  when,  according  to  said  witness,  the  petitioner 
stated  the  grounds  of  his  charges  against  the  respondent. 
This  testimony  is  not  denied  altho  the  petitioner  was  in 
the  court  room  when  it  was  given  and  might  have  been 
called  in  rebuttal. 

On  the  whole,  we  cannot  regard  the  evidence  as  dis- 
closing that  clear  and  convincing  preponderance  in  favor 
of  the  petitioner's  claim  which  would  entitle  him  to  the 
relief  sought.  For,  while  this  is  a  civil  action,  the  courts, 
as  we  have  seen,  require  unusually  strong  proof  of  such 
allegations,  and  the  requirements  fall  little,  if  any,  short 
of  those  applicable  to  a  criminal  cause.  We  feel  that  the 
discrepancies  between  the  testimony  of  petitioner's  two 
witnesses  and  respondent's  denial,  corroborated  as  it  is, 


ALLEN  V.  ALLEN,  JAN.  29,  1916.  537 

leave  the  evidence  in  such  a  state  that  it  would  be  unsafe  to 
base  a  finding  thereon  in  favor  of  the  petitioner.  His 
motion  is,  accordingly, 

OVERRULED. 

On  March  4,  1916,  the  following  additional  order  was  filed  in  the 
same  cause: 

A  motion  is  here  presented  in  behalf  of  the  respondent  for  the 
allowance  to  her  counsel  of  a  reasonable  fee  for  services  in  resisting 
the  motion  to  modify  the  decree  which  was  presented  by  the  peti- 
tioner and  overruled  by  the  Court. 

The  power  of  this  Court  to  grant  such  relief  was  determined  in 
the  original  decree  in  this  cause,  being  there  based  upon  specific 
acts  of  Congress,  tho  such  power  appears  to  exist  independently 
of  statute,''  and  if  the  Court  were  authorized  to  grant  such  relief 
in  order  to  enable  the  respondent  to  obtain  a  decree  in  her  favor, 
it  would  seem  to  follow  that  she  is  entitled  to  a  similar  award  for 
services  in  retaining  the  benefits  of  such  decree  and  preventing  its 
modification.  We  are  unable  to  agree  with  petitioner's  counsel  that 
such  additional  services  were  unnecessary.  The  relief  sought  by 
petitioner  by  such  motion  would  not  only  have  deprived  respondent  of 
the  benefits  of  the  decree,  but  would  seriously  have  affected  her  reputa- 
tion, and  she  was  vitally  concerned  in  meeting  and  resisting  it. 
Moreover,  being  an  ignorant  woman,  she  could  hardly  have  been 
expected,  without  professional  aid,  to  have  met  and  successfully  over- 
come the  showing  made  by  respondent.  The  employment  of  counsel 
was  therefore  rendered  necessary  by  the  filing  of  the  motion. 

Nor  can  we  agree  that  the  allowance  of  an  attorney's  fee  on  this  mo- 
tion would  encourage  misconduct  on  respondent's  part  with  impunity. 
We  have  specifically  held  that  such  misconduct,  if  proved,  would  be 
sufficient  to  forfeit  her  allowance.  The  attorney's  fee  is  merely  for 
the  purpose  of  enabling  her  to  protect  herself  against  an  unsubstan- 
tiated charge  of  misconduct.  Besides,  as  regards  the  misconduct  it- 
self, petitioner  is  no  more  concerned  than  anyone  else  for  since  the 
decree  of  divorce  a  mensa  et  thoro,  he  is  no  longer  responsible  for  her 
behavior,  and  we  think  it  clear  from  the  evidence  that  his  purpose  in 
filing  the  motion  was  not  so  much  to  insure  the  respondent's  good 
conduct  as  to  relieve  himself  from  the  payment  of  alimony. 

We  may  assume,  with  his  counsel,  that  petitioner  filed  the  motion 
in  good  faith,  but  the  fact  remains  that  it  required  action  on  re- 
spondent's part  which  included  the  services  of  an  attorney,  and  we 
do  not  see  how  he  can  reasonably  expect  to  escape  liability  for  such 
employment.  In  view,  however,  of  the  fact  that  he  has  already  paid 
one  attorney's  fee,  and  that  his  income  is  not  large,  we  shall  allow 
only  a  moderate  fee  in  this  instance,  and  we  fix  it  at  Mexican  $20, 
which  amount  the  petitioner  is  hereby  adjudged  to  pay  respondent's 
attorney  of  record. 

*  14  Cyc,  740;  Encyclopedia  of  Pleading  and  Practice,  I,  450. 


538  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Henry  Varnum  Noyes'  Estate. 

[Special  Proceeding  No.   160;  filed  February  21,  1916.] 

SYLLABUS. 

(By  the  Court.) 

1.  INTESTATE  SUCCESSION:  WIDOW'S  SHARE.     Under  the  Federal  law 

in  force  in  this  extraterritorial  jurisdiction,  the  widow  of  an 
intestate  who  left  surviving  children  is  entitled  to  but  one-third 
of  his  personalty. 

2.  Id.  :  Realty  :  Conflict  of  Laws.     The  law  governing  the  descent 

of  real  property  is  the  lex  loci  rei  sitae. 

3.  Id.  :  Id.  :  Vesting.     By  the  common  law,  which  is  in  force  in  most 

American  States,  an  intestate's  realty  is  not  a  primary  asset  of 
the  estate  but  vests  at  once  in  the  heir. 

4.  Id.  :   Forum  :   Election.     Time  allowed  the  heir  for  an  election  to 

determine  whether  to  continue  the  administration  here  or  to 
take  out  ancillary  letters  at  the  locus  rei  sitae. 

Lobingier,  J.: 

This  cause  comes  on  for  hearing  on  the  petition  of  the 
administrator  of  the  estate  of  Henry  Varnum  Noyes  who 
died  at  Fati,  Canton,  January  21,  1914.  The  petition 
prays  for  an  order  approving  the  administrator's  final 
account,  authorizing  distribution  of  the  residue  of  the 
estate,  his  final  discharge,  and  the  closing  of  the  adminis- 
tration. 

It  appears  from  the  affidavit  in  proof  of  publication 
that  notice  to  creditors  was  duly  published  and  that  the 
time  fixed  in  said  notice  for  creditors  to  file  claims  has 
expired;  and  the  said  administrator's  account  recites  that 
no  claims  against  the  said  estate  were  presented  and  that 
there  remain  in  his  hands  as  such  administrator  money 
and  personal  property  of  the  value  of  $2,286.46  Mexican 
currency. 

The  petition  for  letters  of  administration,  presented 
by  the  widow  of  the  deceased,  sets  forth  that  he  "left  no 
will  or  other  document  relating  to  the  disposition  of  said 
property"  and  the  evidence  received  at  the  hearing  upon 
said  petition  shows  that  the  said  deceased  left  surviving 
him  as  next  of  kin  his  widow,  Arabella  A.  Noyes,  one 
son,    the   present   petitioner,    William    Dean    Noyes,    and 


IN  RE  NOYES'  ESTATE,  FEB.  21,  1916.  539 

several  sisters.     Under  the  statute  in  force  here  ^  the  widow 
in  such  a  case  takes  one-third  and  the  son  the  remainder. 
In  the  administrator's  final  account  it  is  further  recited 
that  among  the  assets  of  the  estate  are 

"sixteen  and  two-thirds  acres  of  woodland  property  near  Seville, 
Ohio,  valued  at  approximately  eight  hundred  dollars,  gold," 

and  we  are  asked  to  make  som.e  order  relative  thereto. 
But  the  law  governing  the  descent  of  real  property  is  the 
lex  loci  rei  sitae  -  which  in  this  instance  is  the  law  of  Ohio. 
Now,  that  state,  along  with  most  American  jurisdictions, 
retains  for  the  most  part  the  common  law  doctrine  ^  that 
the  real  property  of  an  intestate  vests  on  the  owner's  death 
immediately  in  his  heir,  forms  no  primary  part  of  the 
estate's  assets  and  is  not  subject  to  the  administrator's 
control.  In  Ohio  this  doctrine  has  been  modified  to  the 
extent  of  subjecting  the  lands,  in  case  only  the  personalty 
is  insufficient,  to  the  payment  of  the  decedent's  debts  and 
a  year's  allowance  to  the  widow  and  minor  children.*  In 
this  case  it  appears  that  there  are  no  debts  at  least  in 
China,  and  there  is  nothing  yet  before  us  which  would 
justify  an  exercise  of  jurisdiction  over  the  realty.  We 
shall,  however,  leave  the  administration  open  for  a  reason- 
able time  to  enable  the  administrator  and  heir  to  determine 
whether  to  continue  it  here  or  to  take  out  ancillary  letters 
in  Ohio.  The  prayer  for  closing  and  discharge  cannot, 
therefore,  be  granted  at  this  time  but  it  is  now  considered 
and  decreed: 

1.  That  all  claims  against  the  said  estate  be  and  the  same  are  here- 
by barred. 

2.  That  the  final  account  of  the  administrator  be  approved. 

3.  That  the  said  administrator  distribute  the  money  and  personal 
property  belonging  to  said  estate — > 

(a)  By  delivering  one- third  thereof  (equivalent  in  value  to  Mex- 
ican $762.15)   to  the  said  widow,  Mrs.  Arabella  A.  Noyes. 

(6)  By  delivering  the  residue  (being  equivalent  in  value  to  Mex- 
ican $1,524.31)   to  William  Dean  Noyes,  heir  at  law.' 

*  In  re  Thacher's  Will,  ante,  p.  524. 
'14  Cyc.  21. 
'  18  Cyc.  180,  181. 

*Carr.  v.  Hull,  65  O.  St.,  394,  58  L.  R.  A.  641. 
^  In  re  Kate  Landers'  Estate,  Cause  No.  844,  the  following  order 
was  entered  on  February  14,  1919: 


540  I  EXTRATERRITORIAL  CASES. 

This  cause  comes  on  for  hearing  upon  the  Administrator's  petition 
for  leave  to  make  distribution  and  for  final  discharge,  and  it  appear- 
ing from  the  Administrator's  final  report  that  Notice  to  Creditors 
has  been  duly  published,  and  that  all  proper  claims  against  the 
estate  have  been  paid,  no  reason  appears  why  the  prayer  of  said 
petition  should  not  be  granted. 

From  the  depositions  just  received  it  appears  that  the  deceased 
left  surviving  her  two  sisters  and  her  father,  a  situation  which 
appears  to  be  governed  by  the  following  provision  of  the  Act  of  Con- 
gress of  March  3,  1901  (31  U.  S.  Stats,  at  Large,  sess.  II,  Ch.  854, 
p.  1250,  sec.  380) : 

"If  there  be  a  father  and  no  child  or  descendant,  the  father  shall 
have  the  whole;  and  if  there  be  a  mother  and  no  father,  child,  or 
descendant,  the  mother  shall  have  the  whole." 

It  is  accordingly  considered  and  decreed  that  the  Administrator 
proceed  to  distribute  the  assets  of  the  said  estate  now  in  his  hands, 
less  the  amount  allowed  by  law  for  his  own  fees  and  the  fees  of  this 
Court,  to  the  father  of  the  said  deceased,  Patrick  Landers,  and  that 
upon  the  Administrator's  filing  with  the  Clerk  of  this  Court  a  proper 
receipt  from  the  said  Patrick  Landers  the  said  Administrator  shall 
stand  discharged  and  the  administration   closed. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Simon  Osman. 

[Cause  No.  483;   filed  March  17,  1916.] 

SYLLABUS. 

(By  the  Court.) 

1,  STATUTES:    SUITABILITY.     An  Act  of  Congress  is  not  rendered  un- 

suitable in  this  jurisdiction  merely  for  the  want  of  an  institu- 
tion wherein  the  penalty  for  its  violation  is  to  be  served;  since 
Congress  has  expressly  provided  for  the  service  of  such  penal- 
ties elsewhere. 

2.  VAGRANCY:    BiLiBiD  PRISON  appears  to  meet  the  requirements  of 

a  place  of  confinement  for  violating  the  Congressional  vagrancy 
act  of  1909. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Joseph  W.  Rice,  Esq.,  for  the  defense. 

LOBINGIER,  J.: 

The  accused  pleads  guilty  to  an  information  charging 
that  he  is 


UNITED  STATES  V.  OSMAN,  MAR.  17,  1916.  541 

"a  native  of  the  Island  of  Guam,  and  a  subject  of  the  United  States 
of  America"  and  that  he  is  guilty  "of  the  crime  of  vagrancy, — in 
that  the  said  Simon  Osman,  on  several  different  days  during  the 
months  of  January  and  February,  nineteen  hundred  and  sixteen,  at 
Shanghai,  in  the  Republic  of  China,  and  within  the  jurisdiction  of 
said  Court,  did  lead  an  idle  life,  did  have  no  visible  means  of  support, 
did  go  from  door  to  door  and  in  the  street  did  beg  and  receive  alms." 

The  sole  question  relates  to  the  penalty.  The  District 
Attorney  asks  that  we  apply  the  following  provision  which 
was  enacted  by  Congress  in  1909  and  appears  to  be  its 
latest  expression  of  intent  on  this  subject: 

"Every  person  in  the  District  of  Columbia  who  shall  be  convicted 
of  vagrancy  under  the  provisions  of  this  Act  shall  be  required  to 
enter  into  security  in  a  sum  not  exceeding  five  hundred  dollars,  con- 
ditioned upon  his  good  behavior  and  industry  for  the  period  of  one 
year,  and  if  he  shall  fail  to  give  such  security  he  shall  be  committed 
to  the  workhouse  in  the  said  District  for  a  term  not  to  exceed  one 
year.  The  security  herein  mentioned  shall  be  in  the  nature  of  a 
recognizance  to  the  District  of  Columbia  with  a  surety  or  sureties  to 
be  approved  by  the  police  court  of  the  said  District,  in  which  court 
all  prosecutions  under  this  Act  shall  be  conducted  in  the  manner 
now  provided  by  law  for  the  prosecution  of  offenses  against  the 
laws  and  ordinances  of  the  said  District,  but  nothing  contained  in 
section  -forty-four  of  the  Code  of  Law  for  the  District  of  Columbia 
shall  be  so  construed  as  to  create  or  give  to  the  accused,  in  prose- 
cutions under  this  Act,  any  right  to  trial  by  jury  not  existing  by 
force   of  the   Constitution   of   the   United    States."  ^ 

Counsel  for  the  accused  contends  that  said  statute  is  not 
"suitable"  to  this  jurisdiction  because  we  have  no  "work- 
house." The  same  logic  would  preclude  us  from  applying 
any  statute  prescribing  incarceration  in  a  penitentiary  be- 
cause no  such  institution  exists  within  our  territorial  juris- 
diction. But  Congress  has  provided  for  such  cases  by  the 
following  enactiient: 

"AH  persons  who  have  been,  or  who  may  hereafter  be,  convicted  of 
crime  by  any  court  of  the  United  States,  including  consular  courts, 
whose  jyunishment  is  i'mp7nsoninent  in  a  District  or  Territory  or 
country  where,  at  the  time  of  conviction  or  at  any  time  during 
the  term  of  imprisonment,  there  may  be  no  penitentiary  or  jail 
suitable  for  the  confinement  of  convicts,  or  available  therefor,  shall 
be  confined  during  the  term  for  which  they  have  been  or  may  be 
sentenced,  or  during  the  residue  of  said  term,  in  some  suitable  jail 


'  35  U.  S.  Stats,  at  Large,  sess.  II,  Pt.  I,  Ch.  250,  p.  711. 


542  I  EXTRATERRITORIAL  CASES. 

or  penitentiary  in  a  convenient  State  or  Territory,  to  be  designated 
by  the  Attorney-General."  ^ 

It  will  be  seen  that  this  authorizes  the  transfer  to  some 
institution  outside  this  jurisdiction  of  those  convicts  "whose 
punishment  is  imprisonment."  If,  therefore,  commitment 
to  a  workhouse  constitutes  imprisonment  the  person  so 
committed  may  be  transferred  and  the  absence  of  a  work- 
house within  the  jurisdiction  offers  no  obstacle  to  the  ap- 
plication of  the  statute  herein  invoked. 

A  workhouse  has  been  defined  as  "an  industrial  prison 
for  vagrants  and  petty  offenders."  ^ 

"It  is  made  a  place  of  confinement  for  persons  sentenced  to  im- 
prisonment at  hard  labor,  for  disorderly  persons,  and  for  disobedient 
or  intemperate  slaves  or  servants."  ■" 

"The  word,  in  this  state  has  a  well-defined,  popular,  and  legal 
signification.  It  is  a  place  or  -prison  where  persons  convicted  of 
minor  offenses  and  misdemeanors  may  be  confined  and  kept  at 
labor." ' 

It  is  true  that  in  early  English  legislation,  the  term 
seems  to  have  been  applied  to  a  place  for  the  housing  of 
paupers  but  that  use  appears  never  to  have  been  made  of 
it  in  America.  There  a  workhouse  has  always  meant  a 
place  of  confinement  and  is  quite  as  much  a  prison  as  is 
a  jail  or  penitentiary.  A  workhouse  differs  from  a  jail 
in  that  its  inmates  are  required  to  labor;  it  differs  from 
a  penitentiary  in  housing  petty  offenders;  but  all  three 
are  prisons. 

Counsel  for  the  accused  calls  our  attention  to  the  fact 
that  the  Congress  next  following  that  which  enacted  the 
statute  invoked  by  the  District  Attorney  designated  the 
District  of  Columbia  Institution  as  a  "Reformatory  and 
Workhouse."  *'  That  phrase  not  inaptly  describes  the  In- 
stitution designated  by  the  Attorney-General  ^  as  a  place 

^  U.  S.  Rev.  Stats.,  sec.  5546,  as  amended  by  the  Act  of  March  3, 
1901,  31  U.  S.  Stats,  at  Large,  sess.  II,  Ch.  873,  p.  1450. 

'  Staindard  Dictionary  ad  verbuTn. 

'  State  V.  Ellis,  26  N.  J.  L.,  221. 

'  Farmer  v.  City  of  St.  Paul,  65  Minn.,  176,  33  L.  R.  A.,  199,  67 
N.  W.,  990,  992. 

"  36  U.  S.  Stats,  at  Large,  sess.  II,  Pt.  I,  Ch.  385,  p.  785. 

'  Opinion  of  October  28,  1915,  30  Ops.  Atty.  Gen.  462. 


UNITED  STATES  V.  OSMAN,  MAR.  17,  1916.  543 

of  confinement  for  long  term  prisoners  under  sentence  of 
this  court,  viz.,  Bilibid  Prison  at  Manila.  It  is  a  reform- 
atory because  the  methods  of  modern  penology  are  applied 
there,  the  aim  being  to  reclaim  and  improve  the  inmates 
by  practical  teaching  and  mild  tho  exacting,  discipline. 
It  is  also  "an  industrial  prison"  which,  as  we  have  seen, 
is  one  of  the  definitions  of  a  workhouse.  The  inmates 
are  taught  useful  trades  and  encouraged  to  form  habits 
of  industry  while  idleness  is  forbidden.  These  would  seem 
to  be  the  characteristics  of  a  "Reformatory  and  Workhouse" 
combined. 

We  do  not  find  that  a  workhouse  loses  its  character  as 
such  by  being  operated  in  conjunction  with  another  penal 
institution.  In  one  of  the  authorities  ^  cited  by  defendant's 
counsel,  while  the  distinction  is  drawn  between  jail  and 
workhouse,  it  appears  that  the  act  under  construction  ex- 
pressly authorized  free  holders 

"to  convert  such  parts  of  the  jails  of  their  respective  counties  as 
to  them  might  seem  proper,  into  work-houses,  taking  care  to  reserve 
space  and  room  enough  in  said  buildings  for  the  uses  and  purposes 
of  the  public  jails,  in  order  that  the  act  for  the  establishing  of 
work-houses  might  be  carried  into  as  full  effect  as  though  the  said 
work-houses  had  been  built  or  purchased." 

It  seems  clear  from  this  that  a  workhouse  and  jail,  or 
for  that  matter,  a  workhouse  and  penitentiary,  may  be 
maintained  in  the  same  building  and  under  the  same  man- 
agement so  long  as  the  two  classes  of  prisoners  are  kept 
separate.  Such  is  the  situation  in  Bilibid  Prison.  It  is 
used  not  only  for  the  confinement  of  long  term  convicts 
but  also  for  housing  petty  offenders  from  the  City  of  Ma- 
nila and  the  latter  are  kept  distinct  from  the  former  and 
set  to  useful  labor  as  in  a  workhouse. 

It  is  objected  that  the  maximum  term  of  one  year's 
commitment  renders  unsuitable  the  statute  invoked  by  the 
District  Attorney;  but  it  was  held  by  a  former  judge  of 
this  Court  that  the  limits  of  penalties  are  not  binding 
upon  it  since  Congress  by  one  of  its  provisions  ^  "leaves 
the  fixing  of  penalties  for  criminal  offenses  committed 
within  this  extraterritorial  jurisdiction  to  the  discretion 

'  State  V.  Ellis,  26  N.  J.  L.,  219.      "  U.  S.  Rev.  Stats.,  sec.  4101. 


544  I  EXTRATERRITORIAL  CASES. 

of  trial  officers."  "  Moreover  the  Court  has  always  dis- 
cretion to  apply  the  minimum  penalty  which  in  this  in- 
stance might  be  any  period,  however  short,  less  than  one 
year.  In  any  event  we  could  not  agree  that  a  year's  com- 
mitment to  a  workhouse  would  constitute  "a  cruel  and 
unusual  punishm.ent"  even  if  the  constitutional  inhibition 
thereof  had  any  extraterritorial  force  ". 

Neither  the  validity  nor  the  applicability  of  the  statute 
in  question  is  affected  by  its  omission  (which  appears  to 
have  been  an  oversight)  from  the  District  of  Columbia 
Code.  So  long  as  it  appears  in  the  officially  authenticated 
edition  of  the  Acts  of  Congress,  published  under  the  direc- 
tion of  the  Secretary  of  State,  we  must  presume  it  to  be  in 
force  until  its  repeal  is  shown. 

We  were  at  first  in  doubt  as  to  whether  the  initial  words 
of  the  statute  first  above  quoted  did  not  localize  the  offense 
and  Ti  ake  the  act  inapplicable  elsewhere  than  in  the  Dis- 
trict of  Columbia.  But  a  re-examination  of  the  statutes 
treated  as  applicable  by  the  Court  of  Appeals  '-  in  an- 
nouncing its  doctrine  that  any  pertinent  act  of  Congress 
is  in  force  here  regardless  of  the  limits  within  which  it 
was  originally  intended  to  apply,  convinces  us  that  they 
are  in  principle  no  different  from  the  statute  here  invoked. 
Moreover  the  Court  of  Appeals  there  applied  acts  which 
had  been  passed  long  subsequent  to  the  Congressional 
extension "  of  the  "laws  of  the  United  States  *  *  ♦ 
over  all  citizens"  in  China. 

Finding  no  sufficient  reason  for  not  applying  the  statute 
in  question  the  accused  is  hereby  required  within  three 
days  to  enter  into  security  in  the  sum  of  $100.00  United 
States  currency,  conditional  upon  his  good  behavior  and 
industry  for  the  period  of  one  year.  In  case  he  fails  to 
furnish  that  security  within  the  time  fixed  it  is  ordered 
that  he  be  committed  to  that  department  of  Bilibid  Pris- 
on, territory  of  the  Philippines,  set  apart  for  vagrants 

'"  U.  S.  V.  Grimsinger,  ante,  p.  282,  per  Thayer,  J. 
"  "The   Constitution   can   have   no  operation   in   another  country". 
Field,  J.,  In  re  Ross,  ante,  p.  40. 
"  Biddle  v.  U.  S.,  ante,  p.  120. 
"  U.  S.  Rev.  Stats.,  sec.  4086. 


RATH  V.  RATH,  MAR.  21,  1916.  545 

and  other  petty  offenders  and  that  he  stand  so  committed 
for  a  term  of  four  months.  Pending  transportation  thereto 
he  is  remanded  for  detention  to  the  Prison  for  American 
convicts  at  Shanghai  and  he  is  further  adjudged  to  pay 
the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Rath,  Petitioner,  v.  Rath,  Respondent. 

[Cause  No.  465;  filed  March  21,  1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  DIVORCE :   Adultery.     A  married  man's  occupancy  of  a  bedroom 

at  night  in  company  with  a  woman  not  his  wife,  affords  suffi- 
cient proof  of  adultery. 

2.  Id.  :   Residence.     Evidence  examined  and  found  sufficient  to  show 

petitioner's  residence  in  China  for  the  period  of  time  required 
to  give  the  Court  jurisdiction. 

3.  Id.  :   Return  of  Money  in  possession  of  respondent  but  belonging 

to  petitioner  decreed  as  authorized  by  statute. 

H.  D.  Rodger,  Esq.,  for  petitioner. 

No  appearance  for  respondent. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  appeared 
as  amicus  curiae  but  did  not  oppose  the  granting  of  the 
relief  sought. 

LOBINGIER,  J.: 

The  petition  in  this  cause  alleges: 

"That  the  plaintiff  herein  was  lawfully  married  to  the  said 


Rath  at  the  Navy  Y.  M.  C.  A.,  6  Seward  Road,  Shanghai,  China, 
on  the  loth  day  of  April,  1915,  and  has  always  behaved  toward 
him,  the  said  Defendant,  as  a  chaste  and  faithful  wife,  yet  the  said 
John  Joseph  Rath  neglected  his  marriage  vows  and  duty,  since  the 
said  marriage,  to  wit:  on  November  eighth,  1915,  at  a  Japanese 
Hotel  known  as  'Banzai  Kwan'  at  and  being  No.  7,  Seward  Road, 
Shanghai,  committed  the  crime  of  adultery  with  a  certain  lewd  Chi- 
nese woman,  to  your  Petitioner  unknown." 

In  support  of  her  averment  of  legal  marriage,  petitioner 
offers  in  evidence  an  original  certificate  (Ex.  C)  issued 
by  G.  J.  Barrett,  Vice  Consul  of  the  United  States,  re- 

14008  O.  W. 35 


546  I  EXTRATERRITORIAL  CASES. 

citing  that  a  party  of  the  same  name  as  the  respondent 
was  married  to  "Sophia  Schultz"  which  the  petitioner  tes- 
tifies is  her  name,  on  April  15,  1915,  by  the  Reverend 
Benton  Swartz.  To  prove  her  averment  as  to  the  ground 
of  divorce  petitioner  calls  one  Joseph  Rothman  who  tes- 
tifies to  having  followed  the  respondent  to  the  hotel  named 
in  the  petition  where  he  saw  respondent  obtain  a  room 
for  himself  and  a  Chinese  woman  who  accompanied  him 
and  who,  respondent  said,  was  his  wife.  Later  the  witness, 
having  in  the  meantime  notified  petitioner  and  a  detec- 
tive, returned  with  them  to  the  hotel  where  they  went 
to  the  room  assigned  to  respondent  who,  after  an  alarm 
was  given,  appeared  at  the  door  undressed,  while  the 
Chinese  woman  in  question  was  seen  in  bed  in  the  same 
room. 

Such,  in  brief,  is  the  substance  of  the  testimony  of 
the  petitioner  and  of  the  witness  called  by  her,  and  as 
there  has  been  no  appearance  by  the  respondent,  tho  per- 
sonally served  with  summons  and  notified  in  addition  of 
the  time  and  place  of  hearing,  the  said  testimony  stands 
undisputed,  and  we  find  no  reason  to  reject  it,  nor  can 
there  be  any  doubt  that  it  affords  a  sufficient  ground  for 
divorce. 

"Adultery  may  be  established  by  the  fact  the  parties  occupied  the 
same  room  at  night  or  the  same  bed,  in  the  absence  of  an  explana- 
tion of  the  incriminating  circumstance."  ^ 

The  petitioner  testifies  that  she  has  resided  about  two 
years  in  Shanghai  and  that  she  had  previously  lived  in 
Tientsin  where  she  was  employed  as  a  bar  maid,  being 
then  a  Russian  subject.  This  appears  to  be  sufficient 
to  tr.eet  the  residential  requirements  of  the  statute.^ 

The  petition  contains  no  specific  prayer  for  alimony, 
but  it  does  pray  for  the  return  of  one  hundred  and  twenty- 
five  dollars  Mexican  currency  which,  the  petition  alleges 
and  the  petitioner  testifies,  was  received  from  her  by 
the  respondent  and  has  not  been  returned.  There  is  also 
a  prayer  for  attorney's  fees.     In  a  somewhat  similar  case  • 


'  14  Cyc,  696,  and  cases  there  cited. 

'Act  of  Congress  of  March  2,  1903,  sess.  II,  32   U.  S.   Stats,  at 
Large,  Ch.  978,  sec.  2,  p.  944. 
5  Allen  V.  Allen,  ante,  p.  495. 


UNITED  STATES  V.  LEDDY,  MAR.  2  5,  1916.  547 

we  allowed  an  attorney's  fee  of  fifty  dollars  Mexican 
currency,  and  as  the  petitioner  testifies  that  she  is  re- 
ceiving only  forty  dollars  Mexican  currency  per  month, 
and  as  the  return  of  personal  property  is  expressly  provided 
for  by  statute,*  the  allowance  of  both  items  appears  to  be 
fully  justified. 

It  is  accordingly  considered  and  decreed: 

1.  That  the  bonds  of  matrimony  heretofore  existing  between  peti- 
tioner and  respondent  be  dissolved  absolutely,  that  a  decree  of  di- 
vorce a  vinculo  matrimonii  be  and  hereby  is  granted  and  that  her 
maiden  name  of  Sophia   Schultz  be  restored  to  her. 

2.  That  the  respondent  pay  to  the  petitioner  the  sum  of  one 
hundred  and  twenty-five  dollars,  and  an  attorney's  fee  of  fifty  dollars 
Mexican  currency. 

3.  That  the  respondent  pay  the  costs  of  this  proceeding. 

4.  That  the  respondent  shall  not  be  permitted  to  remarry.' 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  James  F.  Leddy. 

[Cause  No.  485;  filed  March  25,  1916.] 

SYI/LABUS. 
(By  the  Court.) 

CRIMES:  Drunkenness  constitutes  no  legal  excuse  for  crime  tho  it 
may  be  considered  in  fixing  the  penalty. 

LOBINGIER,  J.: 

On  March  17,  1916,  the  accused  pleaded  guilty  to  an  in- 
formation charging  him  with 

"the  crime  of  grand  larceny — in  that  the  said  James  Francis  Leddy, 
on  a  day  or  days,  between  February  25,  1916,  and  March  1,  1916, 
at  Shanghai,  in  the  Republic  of  China,  and  within  the  jurisdiction 
of  said  Court,  did  feloniously  take  and  carry  away  from  on  board 
the  steamship  Seward"  certain  personal  property  of  the  value  of  more 
than  thirty-five  dollars. 


*  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  Tit.  II,  sec.  472. 

"Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  966. 


548  I  EXTRATERRITORIAL  CASES. 

By  two  acts  of  Congress  ^  the  penalty  for  this  offense 
is  fixed  at  not  less  than  one  and  not  more  than  ten  years. 

The  accused  offers  evidence  that  he  had  previously  led 
a  respectable  life  and  it  is  urged  in  his  behalf  that  the 
offense  was  committed  while  under  the  influence  of  liquor. 
In  the  Anglo-American  law,  however,  this  constitutes  no 
excuse  for  crime.     As  stated  by  a  writer  ^  of  authority, 

"It  is  true  that  the  sanctions  of  the  law  cannot  be  supposed  to 
exert  an  equal  influence  on  the  mind  and  conduct  of  a  person  in 
this  state;  but  the  initiation  of  the  crime  may  be  said  to  date  back 
to  the  time  when  the  offender  took  steps  to  deprive  himself  of  his 
reason.  It  is  evident  that  if  drunkenness  were  allowed  to  excuse, 
the  gravest  crimes  might  be  committed  with  impunity  by  those  who 
either  counterfeited   the   state   or   actually   assumed   it." 

In  fixing  the  penalty,  however,  we  are  disposed  to  apply 
in  the  case  at  bar  the  minimum  of  the  term  of  imprisonment 
prescribed  by  the  statute.  His  counsel  has  further  asked 
that  sentence  be  suspended  for  the  present  in  order  to  allow 
the  accused  to  find  employment  within  the  jurisdiction  of 
the  court.  On  March  21  opportunity  was  given  for  the  ac- 
cused to  seek  such  employment  and  a  reasonable  time  al- 
lowed for  obtaining  it,  but  it  appears  that  none  has  been 
obtained  and  that  there  is  no  likelihood  that  any  will  be. 
Whether  in  case  such  an  arrangement  could  have  been  made 
it  should  have  operated  so  as  to  relieve  defendant  of  punish- 
ment we  need  not  now  determine ;  but  we  are  of  the  opinion 
that  it  will  be  better  for  the  accused  to  serve  his  sentence 
as  soon  as  possible  and  reap  the  benefit  of  whatever  de- 
terrent effects  it  may  have.  We  shall  allow  him  credit  for 
the  time  actually  served  in  confinement  since  his  arrest 
but  that  is  as  much  as  we  feel  justified  in  doing. 

It  is  accordingly  considered  and  adjudged  that  the  ac- 
cused be,  and  he  hereby  is,  sentenced  to  one  year  of  im- 
prisonment, dating  from  the  day  of  his  incarceration,  March 
7,  1916;  that  said  sentence  be  served  in  the  Prison  for 
American  convicts  at  Shanghai,  China,  until  the  accused 
can  be  transferred  to  Bilibid  Prison,  at  Manila,  territory 

*Act  of  March  3,  1901,  sess.  II,  31  U.  S.  Stats,  at  Large,  Pt.  I, 
Ch.  854  (District  of  Columbia  Code),  sec.  826;  Act  of  March  3, 
1899,  Sess.  Ill,  30  U.  S.  Stats,  at  Large,  Ch.  429,  Tit.  I,  sec.  41. 

■Harris,  Criminal  Law  (3rd  ed.),  28. 


UNITED  STATES  V.  MARTIN,  APR.   6,  1916.  549 

of   the   Philippines,   where   the   balance   thereof   shall   be 
served  and  that  he  pay  the  costs  of  this  prosecution.^ 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Thomas  Martin. 

[Cause  No.   487;    filed    April   6,   1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  CRIMES.     The   rule   of   reasonable   doubt   applied. 

2.  Id.  :    Counterfeiting.     In    a   prosecution    for    uttering   forged    or 

counterfeit  currency,  knowledge  of  its  character  and  criminal 
intent  must  be  proved  independently  of  the  act  of  uttering. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

James  B.  Davies,  Esq.,  for  the  defendant. 

*  In  U.  S.  V.  Hedges,  Cause  No.  793,  the  same  Judge  in  imposing 
sentence  on  June  26,  1919,  said: 

The  accused  pleads  guilty  to  an  information  charging  that  he,  as 
"a  Bill  Collector  for  the  Shanghai  Water  Works  Company,  on 
several  days  between  the  thirteenth  and  twenty-third  days  of  June, 
A.  D.  1919,  did  then  and  there  willfully,  unlawfully,  knowingly,  in- 
tentionally, fraudulently  and  feloniously  embezzle  and  convert  to  his 
own  use  monies  of  about  the  value  of  Three  Hundred  and  Ninety- 
two  Dollars,  U.  S.  Currency." 

The  statute  provides  that  one  guilty  of  embezzlement  "shall  be 
punished  by  a  fine  not  exceeding  one  thousand  dollars,  or  by  im- 
prisonment for  not  more  than  ten  years,  or  both."  *  Counsel  for 
the  accused  claims  that  he  later  was  intoxicated  (tho  not  to  the 
extent  of  failing  to  realize  what  he  was  doing)  during  the  period 
specified  in  the  information,  and  therefore  asks  that  no  imprisonment 
be  imposed.  But  drunkenness  is  not,  under  our  law,  an  excuse  for 
crime ;  ^  it  is  not  even  a  mitigating  circumstance  °  and  the  term  ol 
thirty  days  recommended  by  the  District  Attorney  seems  Inadequate 
upon  the  record  before  us. 

The  accused  is  accordingly  sentenced  to  sixty  days  of  imprison- 
ment and  to  pay  a  fine  of  three  hundred  and  ninety-two  dollars,  U.  S. 
currency,  being  the  amount  taken,  with  subsidiary  imprisonment 
according  to  law  in  case  of  insolvency,  all  imprisonment  to  be  served 
in  Bilibid  Prison,  territory  of  the  Philippines,  and  to  pay  the  costs 
of  this  prosecution. 

'Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  Tit.  I,  sec.  834. 

*  U.  S.  V.  Leddy,  ante,  p.  547. 
■Corpus  Juris,  XVI,  106,   107. 


550  I  EXTRATERRITORIAL  CASES. 

LOBINGIER,  J.: 

The  defendant,  an  enlisted  man  in  the  United  States 
Navy,  is  charged  with 

"the  crime  of  counterfeiting  National  Bank  notes,  in  that  the  said 
Thomas  Martin,  on  or  about  the  fourth  day  of  March,  nineteen 
hundred  and  sixteen,  at  Shanghai,  in  the  Republic  of  China,  and 
within  the  jurisdiction  of  said  Court,  did  unlawfully,  knowingly, 
fraudulently  and  feloniously  pass,  utter,  and  publish  as  true  and 
genuine,  a  certain  falsely  altered  circulating  note  issued  by  the 
National  Shawmut  Bank  of  Boston,  a  banking  association  which 
had  theretofore  been  authorized,  and  was  acting  under  the  laws 
of  the  United  States  of  America,  upon  and  to  Zee  Tzu  Ying,  a 
citizen  of  the  Republic  of  China,  with  the  intent  and  purpose  of 
him,  the  said  Thomas  Martin  of  defrauding  the  said  Zee  Tzu 
Ying,  *  *  *  ^„^  Yie,  the  said  Thomas  Martin  at  the  time  of  so 
passing,  uttering  and  publishing  the  aforementioned  falsely  altered 
circulating  note,  upon  and  to  the  said  Zee  Tzu  Ying,  then  and  there 
well  knew  that  the  same  falsely  altered  circulating  note  was  falsely 
altered." 

The  only  direct  evidence  to  implicate  the  accused  in  the 
offense  thus  charged  is  that  of  a  money  changer's  clerk 
who  testifies  that  on  March  4,  at  about  6  p.  m.,  the  accused 
came  on  foot  to  his  place  of  business  on  Ningpo  Road, 
Shanghai,  exchanged  the  note  in  question  for  $107,  Mexican 
currency,  and  then  left  in  a  ricsha.  The  witness  further 
says  that  shortly  after  defendant's  departure  he  observed 
an  irregularity  in  the  cipher  appearing  after  the  five  in 
the  note,  which  purported  to  be  an  American  fifty  dollar 
bill,  and  that  he  thereupon  started  in  pursuit  of  the  de- 
fendant, followed  him  to  the  jetty,  along  Peking  and 
Shantung  Roads,  and  procured  his  arrest  by  a  Chinese 
constable. 

The  accused  denies  that  he  ever  saw  his  accuser  until 
the  latter  overtook  him  at  or  near  the  jetty,  and  further 
states  that  he  never  had  the  altered  bill  and  in  fact  had 
no  American  money  in  his  possession  on  that  day.  The 
corroborating  circumstances  upon  which  the  government 
relies  for  conviction  may  be  summarized  as  follows : 

1.  Improbability  of  the  complaining  witness  having  fab- 
ricated his  account. 

2.  The  fact  that  money  of  the  same  denomination  as 


UNITED  STATES  V.  MARTIN,  APR.   6,  1916  551 

that  claimed  to  have  been  exchanged  by  the  complaining 
witness  was  found  on  the  defendant's  person  when  arrested. 

3.  Certain  statements  by  the  accused  at  the  police  station. 

As  to  the  first  of  these  we  are  disposed  to  agree  with 
the  District  Attorney  that  it  seems  antecedently  improbable 
that  any  one  would  invent  such  a  story  and  pursue  the 
accused,  knowing  that  he  was  not  the  one  who  passed  the 
altered  bill.  But  on  the  other  hand  one  would  naturally 
expect  the  accuser  first  of  all  to  confront  the  accused  with 
the  bill  and  demand  reparation.  Instead  of  doing  so,  how- 
ever, the  former  left  the  bill  behind  and  did  not  procure 
it  until  told  to  do  so  by  Sgt.  Macintosh  at  the  station. 
Moreover,  according  to  the  constable  who  made  the  arrest, 
the  accuser's  charge  was  that  the  accused  had  "snatched 
away"  or  "picked  up"  money — not  that  he  had  passed  a 
bad  bill. 

Again  the  opportunity  for  mistaken  identification  seems 
to  have  been  fairly  good.  The  witness  states  that  it  was 
dark  when  the  accused  came  to  his  shop  and  that  he  wore  a 
sailor's  uniform.  Many  such  are  worn  in  Shanghai  and 
there  would  seem  to  be  danger  that  a  Chinese  might  mistake 
one  foreigner  so  attired  for  another. 
"The  witiiess  is  evidently  not  a  careful  observer  or  he 
would  have  noticed  the  alteration  of  the  bill  before  ac- 
cepting it,  especially  as  it  purported  to  be  for  an  unusually 
large  amount  and  was  of  a  denomination  rarely  seen  in 
Shanghai,  the  government's  one  witness  on  the  point  (Mr. 
Stetson  of  the  International  Bank)  testifying  that  he  had 
never  seen  an  American  fifty  dollar  bank  note  in  China. 
Notwithstanding  these  unusual  circumstances  the  witness 
accepted  the  bill  and  parted  with  his  employer's  money 
before  noticing  it.  Evidently  his  observation  of  the  party 
who  brought  the  bill  was  no  closer  for,  tho  complainant 
remembered  the  uniform,  he  could  not  be  sure  of  the  color 
of  the  cap. 

The  witness  further  testified  as  follows: 

Q.  Who  else  was  in  the  shop  on  that  afternoon? 
A.  The  mistress  of  the  shop  was  there. 
Q.  Was  she  present  when  this  transaction  took  place? 
A.  Yes. 


552  I  EXTRATERRITORIAL  CASES. 

Q.  Where  is  she? 

A.  She  is  in  the  other  room  outside. 

Q.  Was  there  nobody  else  present  in  the  shop  besides  the  mistress 
as  you  call  her? 

A.  There  were  carpenters  in  the  shop,  but  they  had  nothing  to  do 
with  it. 

The  proprietress,  tho  present,  was  not  called,  and  the 
failure  to  call  her  must  be  taken  as  an  admission  that  she 
would  be  unable  to  identify  the  defendant.^  Indeed  the 
rule  in  some  jurisdictions  is  that  such  failure  raises  the 
presumption  that  the  witness,  if  called,  would  testify 
adversely.^ 

It  thus  results  that  tho  others  were  present  in  the  shop 
at  the  time  of  defendant's  alleged  visit,  only  this  one  wit- 
ness was  able  to  identify  him,  and  it  must  not  be  forgotten 
that  the  interest  of  this  witness  in  shifting  responsibility 
for  the  loss  which  resulted  from  his  acceptance  of  the 
altered  note  is  very  strong.  For  he  was  only  an  employee  in 
a  shop  where  such  a  transaction  must  have  been  regarded  as 
one  of  considerable  magnitude  and  the  retention  of  his 
position  might  well  depend  upon  the  excuse  or  explanation 
that  he  might  offer. 

(2)  When  the  accused  was  taken  to  the  police  station 
he  was  found  to  have  in  his  pocket  ten  notes'  issued  by 
the  Bank  of  Communications,  each  of  the  denomination 
of  $10,  and  $2.10  in  silver.  In  his  right  sock  there  was 
also  found  a  ten  dollar  bill  issued  by  the  Russo-Asiatic 
Bank,  seven  dollars  in  silver  and  a  twenty  cent  piece.  None 
of  this  money  was  "chopped,"  i.  e.,  marked  as  having  been 
passed  out  by  an  exchange  broker.  The  complaining  wit- 
ness explains  that  the  party  who  left  the  note  was  in  a 
hurry,  and  therefore  unwilling  to  wait  until  the  "chop" 
could  be  placed  thereon,  but  in  reply  to  the  question 

Are  you  practically  compelled  to  put  your  chop  on  every  silver 
dollar? 

he  answers 

Yes,  it  was  the  custom. 

'Kirby  v.  Tallmadge,  160  U.  S.  379,  40  L.  ed.  463.  Cf.  Armory 
V.  Delamirie,  1  Strange  505. 

^  This  rule  has  been  codified  in  many  jurisdictions.  See  e.  g.  Cal. 
Code  C.  P.  sec.  1963   (5,  6). 


UNITED  STATES  V.  MARTIN,  APR.   6,   1916.  553 

The  failure  to  observe  this  custom  has  deprived  us  of  the 
one  conclusive  means  of  identification  w^hich  the  case  would 
afford. 

It  is  true  that  money  aggregating  the  amount  which  the 
witness  claims  to  have  given  the  accused  was  found  on  the 
latter's  person.  But  the  probative  value  of  this  circum- 
stance depends  largely  upon  whether  or  not  the  witness 
was  present  when  it  was  found  and  saw  it  before  he  told 
his  story  to  the  sergeant  and  on  this  point  the  record  is 
silent.  As  we  have  seen,  however,  the  statement  which 
he  had  made  to  the  Chinese  constable  who  made  the  arrest 
was  considerably  different,  viz.,  that  the  accused  had 
"snatched  away"  or  "picked  up"  money  of  the  witness. 

The  amount  of  $107  which  the  witness  claims  to  have 
given  the  accused  was  not  found  on  his  person  alone  or 
even  together.  For  the  accused  had  considerably  more — in 
all  $119.30,  of  which,  as  we  have  seen,  $102.10  were  in  his 
pocket  and  the  balance  in  his  right  sock.  If  he  received  the 
seven  silver  dollars  from  the  witness,  as  the  latter  says,  he 
must  have  placed  them  in  his  sock  between  the  time  of 
such  reception  and  his  arrival  at  the  jetty;  yet,  altho  the 
witness  claims  to  have  seen  him  depart  and  to  have  pur- 
sued him,  watching  him  closely  most  of  the  time,  he  does 
not  say  that  he  saw  him  at  any  time  putting  any  part  of 
the  money  in  his  sock. 

Moreover  a  ship-mate  of  the  accused  (Knight)  testifies 
that  on  the  day  in  question  just  before  the  accused  left  the 
ship  he  took  a  bath  and  upon  doing  so  gave  the  contents 
of  his  pockets  to  said  witness  for  safe  keeping,  and  that 
upon  counting  them  the  ship-mate  found  $150,  including  a 
hundred  dollar  bill,  which  the  accused  states  he  afterward 
had  changed  into  the  ten  notes  later  found  on  his  person. 
We  do  not  see  that  this  testimony  is  in  any  way  impugned 
by  the  fact  that  the  accused  wrote  to  this  ship-mate, 
stating,  according  to  the  government's  witness,  that 

"he  would  like  Mr.  Knight  to  come  over  and  see  him  as  he  wanted 
to  talk  about  the  hundred  dollar  bill  which  he  held  while  he  was 
taking  a  bath,  as  it  was  necessary  for  him  to  prove  that  he  had 
this  amount  of  money." 

This  appears  to  have  been  nothing  more  than  a  reminder 
to  the  ship-mate  of  what  had  meanwhile  become  to  the 


554  I  EXTRATERRITORIAL  CASES. 

accused  an  important  circumstance  and  we  see  in  it 
nothing  necessarily  discrediting  Knight's  testimony  even 
had  he  received  the  letter,  of  v^^hich  there  is  no  evidence 
and  which  he  denies  having  done  stating  that  he  was  at 
the  time  ashore  in  the  hospital.  It  seems  to  be  certain, 
moreover,  that  the  two  never  conferred  about  the  matter 
prior  to  the  trial. 

Finally,  it  must  not  be  forgotten  that  while  it  seems  im- 
probable that  the  complaining  witness  would  manufacture 
such  a  charge,  there  does  not,  on  the  other  hand,  appear 
to  be  any  sufficient  motive  on  the  part  of  the  accused  for 
committing  so  serious  an  offense.  It  is  conceded  that  he 
had  just  been  paid,  and  even  if  we  exclude  the  $107,  which 
the  complainant  claims  to  have  given  him,  the  accused  had 
on  his  person  a  sum  seemingly  sufficient  for  his  immediate 
needs.  Why  then  should  he  resort  to  so  desperate  an  ex- 
pedient as  "raising  a  bill"  and  remain,  while  wearing  his 
uniform,  ten  minutes  in  the  shop  of  his  victim,  inviting 
detection  while  the  crime  was  being  consummated? 

(3)  At  the  police  station  the  accused  seems  to  have  talked 
first  with  Sgt.  Macintosh  who  says  that  the  accused  asked 
to  speak  privately  with  him  and  said  "Can't  you  settle  this? 
I  will  make  it  right  with  you  if  you  do."  The  accused  in 
explanation  declares  that  he  did  not  then  know  the  nature 
of  the  charge  against  him.     He  says : 

"When  I  was  first  arrested  I  did  not  know  what  the  trouble  was. 
I  thought  it  was  for  disturbance  of  the  peace.  After  arriving  at 
the  police  station  I  told  the  Sergeant — He  said  'Hello,  what's  the 
trouble  now.'  I  said,  *I  don't  know  Sergeant,  this  man  wants  me 
for  something;  I  suppose  it  is  for  fighting.  If  the  matter  can  be 
settled  I  will  be  glad  of  it.  I  have  to  go  back  to  the  ship,  my  liberty 
will  soon  be  up,  I  will  get  into  trouble.' 

Q.  Did  you  have  any  intention,  or  was  it  your  intention  to  offer 
this  man  a  bribe? 

A.  I  only  thought  the  matter  was  a  small  matter  and  could  be 
easily  settled." 

Inspector  Vaughan  also  testifies  that  the  accused  asked 
him  if  the  matter  could  be  settled  there  and  then  instead  of 
beiiig  referred  to  his  Consul  as  the  Inspector  had  told  him  it 
would  be.  As  a  sailor  on  short  leave  the  accused  no  doubt 
desired  to  get  out  of  trouble  as  soon  as  possible.     His  state- 


UNITED  STATES  V.  MARTIN,  APR.   6,  1913.  555 

merits  may  even  raise  a  suspicion  but  we  cannot  convict 
him  upon  that. 

The  doctrine  that  one  accused  of  crime  is  presumed  to 
be  innocent  until  his  guilt  is  proven,  and  that  such  guilt 
must  be  established  beyond  any  reasonable  doubt,  is  now  a 
part  of  the  law  of  all  civilized  countries.  Contrary  to 
popular  belief  it  is  not  original  with,  nor  peculiar  to,  Anglo- 
American  jurisprudence. 

"Ammianus  Marcellinus  relates  an  anecdote  of  the  Emperor  Ju- 
lian which  illustrates  the  enforcement  of  this  principle  in  the  Roman 
law.  Numerius,  the  governor  of  Narbonensis,  was  on  trial  before 
the  Emperor,  and,  contrary  to  the  usage  in  criminal  cases,  the 
trial  was  public.  Numerius  contented  himself  with  denying  his  guilt, 
and  there  was  not  sufficient  proof  against  him.  His  adversary,  Del- 
phidius,  'a  passionate  man,'  seeing  that  the  failure  of  the  accusation 
was  inevitable,  could  not  restrain  himself,  and  exclaimed,  *0h,  il- 
lustrious Caesar!  If  it  is  sufficient  to  deny,  what  hereafter  will 
become  of  the  guilty?'  to  which  Julian  replied,  'If  it  suffices  to  accuse, 
what  will  become  of  the  innocent?'  "  ^ 

The  penalty  for  the  offense  with  which  the  accused  is 
charged  is  most  severe — ^the  maximum  being  fifteen  years 
imprisonment  and  a  fine  of  $1,000  or  $5,000  gold,  according 
to  the  provision  which  may  be  applied.*  And  if  the  evidence 
is  sufficient  to  convict  at  all  it  would  justify  the  maximum. 
We  must  be  very  sure  of  guilt  before  imposing  a  sentence 
of  imprisonment  for  fifteen  years ! 

II. 

If  this  is  true  as  regards  the  charge  of  uttering  the  forged 
note,  much  more  must  it  be  so  as  regards  the  averment 
that  it  was  done  with  criminal  intent.  The  District  Attor- 
ney with  commendable  frankness  calls  attention  to  the 
rule  that  such  intent  must  be  proved  independently  of  the 
element  of  passing  the  money,  and  cites  an  authority  which 
declares  '^ 

"Ordinarily,  and  as  a  general  rule,  there  should  be  some  evidence 
of  knowledge,  circumstantial  or  otherwise,  aside  from  that  which 
results  from  evidence  of  the  naked  fact  that  the  spurious  paper  was 

3  Chief  Justice  White  in  Coffin  v.  U.  S.,  156  U.  S.,  455,  39  L.  ed., 
491,  citing  Rerum  Gestarum,  lib.  XVIII,  c.  1. 
*Fed.  Penal  Code,  sees.  148,  149. 
•  Gallagher  v.  U.  S.,  144  Fed.,  87. 


556  I  EXTRATERRITORIAL  CASES. 

passed.  There  can,  of  course,  be  no  absolute  or  general  rule  as  to 
what  the  evidence  should  be.  It  might,  perhaps,  result  from  a  de- 
scription of  the  appearance  of  the  party  when  the  money  was  passed, 
like  evidence  showing  an  attempt  to  disguise  personal  identity." 

But  criminal  intent  could  only  be  proven  here  by  relying 
on  circumstances  which  are  necessary  to  prove  the  distinct 
element  of  uttering  the  note.  For  it  is  not  contended  that 
the  evidence  as  to  the  latter  would  be  sufficient  without  all  of 
the  alleged  corroborating  circumstances  discussed  above. 
No  others  are  mentioned  which  would  support  the  charge  of 
criminal  intent.  Moreover,  there  are  in  this  case  none  of 
the  circumstances  which  the  Court  in  the  above  excerpt 
points  out  as  constituting  evidence  of  such  intent.  The 
person,  whoever  he  might  have  been,  who  passed  this 
altered  bill  did  not,  so  far  as  it  appears,  "attempt  to  dis- 
guise personal  identity."  He  was,  it  is  true,  according  to 
the  complaining  witness,  in  a  hurry  but  the  latter  also  says 
that  the  transaction  took  about  ten  minutes,  which  hardly 
indicates  undue  haste. 

Considering  that  the  identification  of  the  accused,  and 
all  direct  evidence  implicating  him,  emanates  from  a  single 
witness  and  he  not  a  disinterested  one,  that  the  circum- 
stances relied  upon  as  corroborating  are  themselves  subject 
to  much  qualification  and  explanation  and  that  no  sufficient 
motive  is  shown,  we  are  unable  to  say  that  the  guilt  of  the 
accused  is  established  beyond  any  reasonable  doubt.  He  is 
entitled  under  the  law  to  the  benefit  of  any  such  doubt  and 
we  have  accordingly  no  alternative  but  to  direct  an  acquittal 
with  costs  de  officio. 

IT  IS  so  ORDERED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Star  Garage  Co.,  Ltd.,  Plaintiff  and  Appellant,  v.  H.  S. 

HONIGSBERG  &  Co.,  Defendant  and  Appellee. 

[Cause  No.  497;  filed  April  18,  1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRIBUTORY  NEGLIGENCE.     Under  the  doctrine  of  contributory 
negligence,    which    prevails    in   most    Anglo-American    jurisdic- 


STAR  GARAGE  CO.  V.  HONIGSBERG  &  CO.,  APR.  18,  1916.    557 

tions,  a  party  cannot  recover  for  an  injury  to  which  his  own 
negligence  has  contributed. 

2.  Id.:  Onus  Probandi:  In  the  Federal  Courts  the  burden  of  prov- 

ing such  negligence  rests  upon  defendant,  but  such  proof  may 
appear  from  plaintiff's  own   evidence. 

3.  Id.  :   Evidence  examined  and  found  to  show  that  plaintiff's  chauf- 

feur was   guilty  of  negligence   contributing   to   a   collision   be- 
tween his  own  car  and  defendant's. 

APPEAL  from  the  Consular  Court  for  the  District  of 
Shanghai. 
H.  D.  Rodger,  Esq.,  for  appellant. 
Messrs.  Flertiing  &  Davies,  by  Mr.  Davies,  for  appellee. 

LOBINGIER,  J.: 

Plaintiff  brought  this  action  in  the  court  below  to  re- 
cover damages  for  injuries  to  his  automobile,  resulting 
from  a  collision  with  one  belonging  to  the  defendant  and 
occurring  at  the  intersection  of  Chekiang  and  Canton  Roads 
in  the  International  Settlement  of  Shanghai.  After 
plaintiff  had  produced  his  evidence  defendant  moved  for 
a  dismissal  on  the  ground  that  said  evidence  disclosed  that 
plaintiff  was  not  entitled  to  recover.  From  an  order  sus- 
taining said  motion  plaintiff  appealed. 

It  appears  that  during  the  last  Chinese  New  Year,  viz., 
on  February  2,  1916,  at  about  5.30  a.  m.,  plaintiff's  car 
was  moving  north  on  Chekiang  Road  and  defendant's  was 
going  east  on  Canton  Road,  both  rapidly.  There  is  no 
specific  estimate  as  to  the  rate  of  speed  of  defendant's  car, 
most  of  plaintiff's  witnesses  merely  stating  that  it  was 
moving  faster  than  plaintiff's  and  no  witness  having  tes- 
tified in  defendant's  behalf.  As  to  plaintiff's  car,  how- 
ever, the  chauffeur  testifies 

"Before  reaching  the  corner,  I  was  travelling  20  miles  an  hour 
but  slowed  down  to  about  15  miles."     (p.  2.) 

Yet  the  street  over  which  he  was  passing  was  "narrow" 
and  "crooked"  (p.  6)  and  tho  there  were  shop  lights  there 
is  no  suggestion  of  any  other. 

He  further  testifies  "I  did  not  apply  the  brake"  (pp.  1, 
2)  ;  "I  looked  up  the  cross  road  but  did  not  see  Honigsberg's 


558  I  EXTRATERRITORIAL  CASES. 

car"  until  he  "reached  the  middle  of  the  cross  road,"  (p.  2) 
nor  "until  it  was  about  20  feet  from  me." 

Other  witnesses  for  the  plaintiff,  however,  saw  defend- 
ant's car  at  a  much  greater  distance — one  (Tsang  San  Tse) 
"when  it  was  about  10  houses  from  the  corner"  and  another 
(Moh  Hung  Yue)  when  it  was  "about  5  houses  from  the 
corner."  Still  another  witness  for  plaintiff  (Tsoong  Tze 
Chi)  testifies  that  both  cars  "had  lights"  and  in  fact  the 
chauffeur  himself  states  that  "all  cars  use  small  lights;" 
and  it  would  seem  to  follow  that  he  could  not  have  looked 
carefully  toward  the  west  in  entering  the  intersection  of 
the  street  or  he  would  have  seen  defendant's  car  approach- 
ing at  a  much  greater  distance  than  he  says.  The  street 
corners  are  occupied  by  high  buildings  hiding  all  view  of 
the  west  until  toward  the  center  of  the  cross  street  and 
common  prudence  would  have  dictated  a  slow  and  careful 
entrance  to  said  street  in  order  to  avoid  approaching  ve- 
hicles which  could  not  be  seen. 

It  thus  results  from  plaintiff's  own  evidence  that  in  the 
early  morning  while  yet  dark  his  car  was  moving  along  a 
narrow  street  at  the  rate  of  20  miles  an  hour,  that  on 
approaching  an  intersection  of  another  street,  the  view  of 
which  was  hidden  by  high  buildings,  he  continued  at  a 
speed  of  15  miles  an  hour,  that  he  failed  to  look  to  the 
west  with  sufficient  care  to  observe  another  car  approach- 
ing at  a  much  greater  rate  of  speed  and  equipped  with  lights 
and  that  he  failed  to  apply  the  brake  at  any  time.  The 
question  is  whether,  regardless  of  the  negligence  of  which 
defendant's  chauffeur  may  have  been  guilty,  plaintiff  may 
recover  upon  such  evidence. 

The  doctrine  of  contributory  negligence  is  well  estab- 
lished as  a  part  of  the  common  law  of  most  Anglo-American 
jurisdictions  ^  and  is  applied  by  the  Federal,  as  well  as 
the  state,  courts.^     It  has  been  defined  as 

*"The  universal  rule  is  that  if  negligence  on  the  part  of  the 
person  injured  contributed  to  the  injury  he  is  not  entitled  to  recover 
therefor."     29  Cyc,  507. 

'  Glaus  V.  Northern  Steamship  Co.,  89  Fed.  646,  32  C.  C.  A.  282 ; 
Gravelle  v.  Minneapolis,  etc.,  R.  Co.,  10  Fed.  711,  3  McCrary  352. 


STAR  GARAGE  CO.  V.  HONIGSBERG  &  CO.,  APR.  18,  1916.    559 

"such  an  act  or  omission  on  the  part  of  plaintiff,  amounting  to  an 
ordinary  want  of  care,  as,  concurring  or  cooperating  with  the  neg- 
ligent act  of  defendant,  is  the  proximate  cause  or  occasion  of  the 
injury  complained  of."  * 

In  some  jurisdictions  the  burden  of  proving  the  want 
of  such  neghgence  rests  upon  plaintiff,*  but  the  majority 
rule  is  that  the  defendant  assumes  the  burden  of  proving 
Buch  negligence.'  The  Federal  Courts  apply  the  latter 
rule  ®  even  in  states  where  the  opposite  one  is  followed  by 
the  local  tribunals ;  ^  but  it  is  sufficient  if  negligence  appear 
from  plaintiff's  evidence. 

Under  all  authorities  we  have  consulted  a  speed  of  20  or 
even  15  miles  an  hour  on  a  narrow  street  is  treated  as  ex- 
cessive. In  enacting  a  law  for  the  District  of  Columbia, 
Congress  has  fixed  12  miles  an  hour  as  the  maximum  rato 
"between  intersecting  streets  and  avenue;"  ^  and  while  this 
may  not  be  applicable  in  all  respects  to  Shanghai  (the 
streets  are  much  wider  and  straighter  in  Washington)  it 
at  least  expresses  the  legislative  intent  as  to  what  should 
be  the  limits  of  speed.  Even  in  the  absence  of  such  an  ex- 
pression a  rate  of  8  or  10  miles  an  hour  has  been  held  ex- 
cessive and  negligent.^  And  one  who  drives  his  vehicle 
at  such  a  rate  of  speed  as  to  contribute  to  a  collision  is 
precluded  from  recovery  for  injuries  therefrom." 

As  is  observed  in  one  case:^^ 

"The  driving  of  an  automobile  at  a  high  rate  of  speed  thru  city 
streets,  at  times  when  and  places  where  other  vehicles  are  constantly 

*29  Cyc,  505. 

^Id.  603. 

=  Id.  601. 

« Inland  etc.  Coasting  Co.  v.  Tolson,  139  U.  S.,  551,  35  L.  ed.,  270. 

'■  Chicago  etc.  R.  Co.  v.  Price,  97  Fed.,  423,  430. 

'  Act  of  June  29,  1906,  Sess.  I,  34  U.  S.  Stats,  at  Large,  Pt.  I,  Ch. 
3615,  sec.  1. 

"  Gregory  v.  Slaughter,  124  Ky.  358,  99  S.  W.  248 ;  Wales  v.  Harper, 
(Manitoba),  17  West.  L.  R. 

"Garrett  v.  People's  Ry.  Co.,  (Del.)  64  Atl.  254;  Lauson  v.  Fond 
du  Lac,  141  Wis.  57,  123  N.  W.  629;  Broschart  v.  Tuttle,  59  Conn.  1, 
11  L.  R.  A.  33. 

"Irwin  v.  Judge,  81   Conn.  492,  71  Atl.  572. 


560  I  EXTRATERRITORIAL  CASES. 

passing,  and  men,  women,  and  children  are  liable  to  be  crossing;  or 
around  corners  at  the  intersection  of  streets;  or  in  passing  by  street 
cars  from  which  passengers  have  just  alighted  or  may  be  about  to 
alight;  or  in  other  similar  places  and  situations  where  people  are 
liable  to  fail  to  observe  an  approaching  automobile,  is  in  itself  ac- 
tionable negligence.  One  operating  an  automobile  under  such  cir- 
cumstances is  bound  to  take  notice  of  the  peculiar  danger  of  collisions 
in  such  places.  He  cannot  secure  immunity  from  liability  by  merely 
sounding  his  automobile  horn.  He  must  run  his  car  only  at  such 
speed  as  will  enable  him  to  timely  stop  it  to  avoid  collisions." 

Plaintiff's  counsel  contends  that  even  if  the  chauffeur 
had  gone  more  slowly  the  collision  would  have  occurred; 
but  that  would  hardly  have  been  true  if  the  chauffeur  had 
checked  his  speed  to  the  minimum  on  reaching  the  street 
intersection,  had  looked  for  and  discovered  defendant's  ap- 
proaching car  (as  the  other  witnesses  did)  and  waited 
until  it  had  passed.  It  is  true  that  one  of  the  witnesses 
declares  that  if  plaintiff's  car  had  been  going  faster  the 
collision  would  not  have  occurred  because  the  car  would 
have  been  out  of  the  way;  but  that  is  like  saying  that  if 
plaintiff's  car  had  happened  to  come  along  about  five  min- 
utes earlier  the  accident  would  have  been  avoided.  We 
cannot  speculate  upon  what  might  have  happened  under 
other  conditions;  we  can  only  seek  to  determine  from  the 
evidence  whether  plaintiff's  chauffeur  exercised  the  care  that 
the  law  requires  under  the  conditions  as  they  existed. 

In  view  of  the  speed,  the  failure  to  apply  the  brake,  or 
to  discover  the  approaching  car  we  are  unable  to  say  that 
he  did  and  this  notwithstanding  the  fact  the  defendant's 
chauffeur  may  have  been  guilty  of  still  greater  negligence, 
tho  it  must  be  remembered  that  defendant's  witnesses  have 
not  been  heard  on  that  point.  That  both  were  driving  reck- 
lessly we  may  well  believe  for  we  have  seen  too  many  exam- 
ples of  such  driving  in  Shanghai  not  to  feel  that  it  is  little 
short  of  providential  that  more  of  such  accidents  do  not 
occur  daily.  But  where  both  parties  contribute  to  such 
a  result  by  their  negligence  the  Anglo-American  Law  leaves 
each  where  it  found  him. 

The  judgment  of  the  consular  court,  with  costs  to  the  ap- 
pellant, is 

AFFIRMED. 


LING  AH  CHOY  ET  AL.  V.  SOCONY,  APRIL  25,  1916.       561 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Ling  Ah  Choy  et  al.,  Plaintiffs,  v.  Standard  Oil  Com- 
pany OF  New  York,  Defendant. 

[Cause  No.  427;  filed  April  25,  1916.] 

SYLLABUS. 

(By  the  Court.) 

1.  JUDGMENTS:    PLEADINGS.     Only   claims   properly   pleaded   are   en- 

titled to  adjudication. 

2.  CONTRACTS:   PERFORMANCE.     A  contract  to  "complete     *     *     *     j^ 

a  satisfactory  manner"  a  tank  for  the  storage  of  oil  is  not 
performed  by  constructing  a  leaky  tank  and  the  contractee  is 
not  obliged  to  accept  or  pay  for  such  a  tank. 

3.  Id.  :    Acceptance  :    Evidence   reviewed   and   found   insufficient  to 

show  either  an  acceptance,  express  or  implied,  by  the  contractee 
or  that  the  defects  were  due  to  improper  material  furnished 
by  it  or  that  the  contractor  was  wrongfully  prevented  from 
finishing. 

4.  Id.:   Id.:  Waiver.     A  provision  for  payment  by  installments  may 

be  waived  by  the  contractor  but  such  waiver  in  no  way  binds 
the  contractee  nor  constitutes  an  acceptance  of  the  work. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  plaintiffs. 
Messrs.  Jernigan  &  Fessenden,  by  Mr.  Fessenden,  for 
defendant. 

LOBINGIER,  J.: 

This  is  an  action  on  a  contract  by  which  plaintiffs  under- 
took to  supply  labor  to  construct  an  oil  tank  for  defendant. 
The  latter  furnished  the  material  and  the  contract  re- 
quired plaintiffs  to  "complete  the  tank  in  a  satisfactory 
manner  *  *  *  jj^  seven  weeks  *  *  *  from  the 
date  of  delivery  of  the  whole  of  the  material."  Plaintiffs 
commenced  work  on  September  15,  1914.  Under  clause  8 
of  the  contract  they  were  entitled  to  insist  upon  payment 
of  one-fourth  of  the  total  price  (Tls.  2,350)  upon  complet- 
ing successive  stages  of  the  work ;  but  such  payments  were 
not  made  and  plaintiffs  continued  without  so  insisting.  The 
contract  provides  for  both  water  and  oil  tests  of  the  tank 
and  it  is  conceded  that  such  tests  disclosed  a  considerable 
leakage.     The  defects  in  the  tank  and  the  remedies  there- 

14008  O.  W. 36 


562  I  EXTRATERRITORIAL  CASES. 

for  afforded  the  subject  of  a  long  controversy  between  plain- 
tiffs and  certain  representatives  of  defendant.  On  Novem- 
ber 12  one  of  defendant's  tank  steamers  carrying  9,000  tons 
of  oil  was  expected  and  on  that  day  or  the  next  plaintiffs 
discontinued  work  entirely.  Thereafter  defendant  em- 
ployed another  contractor  who  failed  likewise  to  put  the 
tank  in  a  condition  satisfactory  to  it.  Subsequently,  the 
entire  tank  was  taken  down  and  rebuilt  by  a  third  con- 
tractor. 

The  petition  alleges  the  completion  of  the  tank  *'up  to 
the  point  of  testing  by  water;"  the  disclosure  of  leakage 
and  "that  said  plaintiffs  at  once  proceeded  to  repair  said 
leaks,  when  without  any  just  cause  and  in  breach  of  the 
terms  of  said  contract  the  said  defendant  refused  to  allow 
them  to  proceed".  There  is  also  a  claim  for  extra  materials 
amounting  to  $65.86. 

The  answer  alleges  defendant's  failure  to  "complete  said 
tank  within  the  time  specified  in  said  contract  or  at  all" 
(par.  6)  "denies  that  without  just  cause  and  in  breach  of 
terms  of  said  contract  defendant  refused  to  allow  plaintiffs 
to  proceed  with  the  completion,"  and  puts  plaintiffs  on  their 
proof  as  to  the  extra  materials. 

The  burden  rests  upon  plaintiffs  to  prove  that  they  met 
the  contract  requirement  to  "complete  the  tank  in  a  satis- 
factory manner"  and,  contrary  to  our  first  impression,  we 
are  now  of  the  opinion  that  said  burden  has  never  shifted. 
As  we  have  seen,  plaintiffs  do  not  even  aver  such  comple- 
tion ;  they  merely  allege  readiness  to  complete  and  preven- 
tion by  defendant.  Of  course  this  averment  is  likewise 
for  plaintiffs  to  establish.  Had  they  pleaded  and  proved 
completion  the  burden  might  then  have  shifted  to  defend- 
ant to  show  that  the  tank  was  unsatisfactory. 

As  it  is,  the  unsatisfactory  character  of  the  tank  as  plain- 
tiffs left  it  is  practically  undisputed.  Plaintiff  Ah  Choy 
himself  says  that  it  "leaked  heavily"  (p.  25)  and  further 
testifies : 

"Q.  Where  did  it  leak? 
A.  Three  joints  freely. 

Q.  That  is  where  the  plates  overlap — on  the  ends  of  the  plates  or 
at  the  top  or  bottom? 


LING  AH  CHOY  ET  AL.  V.  SOCONY,  APRIL  25,1916.        563 

A.  On  the  sides. 

Q.  On  the  ends  where  they  meet? 

A.  Yes. 

******* 

Q.  Did  it  leak  any  place  else? 

A.  On  the  outside  there  were  about  10  rivets  which  leaked."  (pp. 
22,  23.) 

Mr.  Stevens,  manager  of  defendant's  construction  depart- 
ment, says: 

"The  condition  of  the  first  ring  of  riveting  was  not  satisfactory, 
particularly  in  the  upper  part.  The  ends  of  the  plates  were  not 
properly  drawn  out,  that  is  they  were  not  hammered  down  to  a  thin 
edge  so  that  the  other  plates  could  be  placed  and  a  tight  joint  made. 
The  rivets  toward  the  upper  part  of  the  first  ring  were  not  dra^vn 
up  tightly  so  as  to  bring  the  plates  into  contact  between  the  rivets, 
and  I  made  some  strips  of  tin  plate  such  as  the  Standard  Oil  Com- 
pany's oil  tins  are  made  of,  about  six  or  eight  inches  long  and  about 
as  wide  as  my  finger,  and  I  could  insert  these  strips  of  tin  between 
the  rivets  quite  freely  in  numerous  places."     (p.  3.) 

Mr.  Robertson,  who  conducted  the  water  test,  says : 

"The  tank  was  leaking  very  badly.  There  was  scarcely  a  seam 
of  the  tank  that  had  not  one  or  more  leaks  in  it.     *     *     * 

Q.  How  many  gallons  and  why  did  it  leak? 

A.  Between  30   and  40  gallons.     *     *     * 

Q.  In  your  experience  would  water  ordinarily  leak  more  freely 
than  petroleum  oil? 

A.  Oil  would  leak  much  more  freely. 

Q.  In  other  words,  it  is  more  difficult  to  hold  oil  in  the  tank  than 
water? 

A.  Yes."     (pp.  2,  16,  14.) 

The  other  witnesses  called  by  plaintiffs  also  testify  (p.  8) 
to  leakage  and  there  is  no  contradiction.  As  the  purpose 
of  building  the  tank  was  to  provide  a  receptacle  for  stor- 
ing oil  it  will  hardly  be  claimed  that  plaintiffs  met  the 
contract  requirement  to  "complete  the  tank  in  a  satisfactory 
manner"  so  long  as  the  leakage  amounted  to  forty  gallons 
a  day  or  even  half  that. 

Plaintiffs  called  as  witnesses  their  foreman  and  two  work- 
men who  state  that  they  remained  to  watch  after  the  second 
contractor  took  charge  and  that  his  laborers  were  unskilled 
and  worked  improperly.  If  there  were  no  testimony  as 
to  the  tank's  previous  condition  we  might  follow  plaintiffs' 


564  I  EXTRATERRITORIAL  CASES. 

counsel  in  his  argument  that  the  leakage  was  caused  by 
the  second  contractor.  But  the  testimony  as  to  leakage 
just  reviewed  all  relates  to  a  period  before  said  contractor 
took  charge.  Moreover  according  to  Mr.  Robertson  (pp. 
14  and  16)  the  oil  test  under  the  second  contractor  showed 
considerably  less  leakage  than  that  made  while  plaintiffs 
were  working. 

The  first  and  most  elaborately  argued  contention  in  plain- 
tiffs' brief  is  that  defendant  accepted  the  tank.  Yet  accept- 
ance is  nowhere  pleaded.  As  we  have  seen  the  case  set  forth 
in  the  petition  is  that  defendant  wrongfully  prevented  the 
completion  of  the  tank ;  not  that  it  was  accepted. 

"It  is  a  well-settled  principle  that  no  proof  can  be  offered  of  mat- 
ters not  put  in  issue  by  the  pleadings."  ^ 

This  rule  is  not  merely  a  technical  one;  it  goes  to  the 
very  merits  of  the  case.  For  it  cannot  be  assumed  that 
defendant  was  prepared  to  meet  and  confute  a  theory  not 
suggested  in  the  pleadings. 

But  we  do  not  find  that  the  evidence  would  support  such 
an  averment  even  had  it  been  made.  Mr.  Stevens  testifies 
on  cross-examination: 

"The  time  I  saw  the  bottom  my  attention  was  attracted  by  the 
fact  that  they  had  part  of  it  on  the  ground  and  the  other  part  in 
the  air,  and  it  was  buckled  in  a  way  that  was  straining  the  bottom. 
I  protested  against  this  method  and  I  never  accepted  the  bottom  of 
the  tank.     *     *     * 

Q.  You  had  already  passed  the  bottom  and  first  two  rings? 

A.  No. 

Q.  The  bottom  and  one  ring? 

A.  No. 

Q.  Did  you  allow  the  work  to  proceed  after  inspecting  it  and  see- 
ing it  lowered  on  the  foundation? 

A.  Yes. 

Q.  If  the  work  was  so  bad  that  it  had  to  be  taken  down  why  didn't 
you  stop  the  job  at  that  point? 

A.  Because  it  was  not  apparent  at  that  time  that  it  would  have 
to  be  taken  down. 

Q.  You  say  that  Ah  Choy  has  constructed — when  you  examined 
that  work  you  say  there  were  places  where  you  could  put  a  piece 
of  tin  thru? 

'31  Cyc,  680. 


LING  AH  CHOY  ET  AL.  V.  SOCONY,  APRIL  25,  1916.        565 

A.  Yes. 

Q.  In  your  judgment  is  that  a  matter  that  could  be  remedied? 

A.  It  could,  yes. 

Q.  Why  wasn't  it? 

A.  It  was  because  Ah  Choy  tried  to  save  time  by  overcaulking. 

Q.  Then  if  you  found  it  was  overcaulked,  why  did  you  allow  it  to 
proceed? 

A.  We  protested. 

Q.  The  contract  says  the  work  was  to  be  carried  on  by  your  en- 
gineers ? 

A.  Yes. 

Q.  You  are  the  head  of  the  engineering  staff  in  northern  China, 
why  didn't  you  stop  it? 

A.  It  did  not  need  to  result — it  was  not  all  overcaulked  at  that 
time;  he  had  only  started  to  overcaulk. 

Q.  Why  did  your  superintendents  allow  it  to  proceed  if  it  was 
being  overcaulked? 

A.  They  only  allowed  it  to  proceed  up  to  a  certain  point  and 
then     *     *     *. 

Q.  And  your  engineers  allowed  him  to  proceed  in  this  condition; 
that  hardly  seems  reasonable. 

A.  We  could  not  tell  how  bad  it  was  until  we  put  the  water  test 
on  it."     (pp.  3,  21,  22,  24,  25.) 

Plaintiff  Ah  Choy  to  a  certain  extent  corroborates  this 
testimony.     On  cross-examination  he  says: 

"Q.  You  heard  Mr.  Stevens  on  the  witness  stand  yesterday  say 
that  rivets  had  been  driven  in  the  tank  as  you  say  they  had  been — 
slanted  in  that  way? 

A.  Yes. 

Q.  Mr.  Stevens  says  that  he  was  in  Tientsin,  and  he  arrived  there 
just  after  the  foundation  had  been  laid  and  called  that  to  your  at- 
tention and  told  you  to  stop — that  is  correct? 

A.  Yes. 

Q.  What  else  did  Mr.  Stevens  tell  you  while  he  was  there? 

A.  The    corner    of   the    overlap    was    not   quite    tight."     (p.    35.) 

But  plaintiff  Ah  Choy  claims  also  to  have  dealt  with  an 
engineer  named  Getz  of  whom  he  testifies: 

"Q.  Did  he  tell  you  to  stop  work? 

A.  No. 

Q.  You  were  urged  to  proceed  with  it? 

A.  Yes,  he  said  'you  had  better  finish  the  work.' " 

It  appears,  however  (p.  27),  that  Mr.  Getz  has  since 
died  and  there  is  no  way  now  of  testing  by  him  the  accuracy 


566  I  EXTRATERRITORIAL  CASES. 

of  plaintiffs'  claim.  Had  the  contract  been  made  in  the 
name  of  Mr.  Getz  these  alleged  conversations  with  him  would 
have  been  entirely  excluded.^ 

Accepting  plaintiffs'  statement  that  Mr.  Getz  asked  him 
to  finish  the  work  that  appears  to  have  been  during  its 
early  stages,  before  the  defects  later  complained  of  were 
apparent.  Under  all  the  testimony  there  was  no  express 
acceptance,  but  quite  the  reverse,  at  or  about  the  time  the 
water  test  was  made. 

Plaintiffs'  counsel,  however,  seems  to  rely  upon  an  im- 
plied acceptance.  His  argument  appears  to  be  that  as  the 
work  was  to  be  paid  for  by  installments,  defendant,  by  per- 
mitting it  to  pass  beyond  the  stage  where  a  payment  was 
due,  accepted  it  v'^o  tanto.  Of  course  if  the  payments  had 
actually  been  made  they  would  doubtless  have  constituted 
such  an  acceptance,  at  least  to  the  extent  of  precluding  their 
recovery  back  if  not  paid  under  mistake  of  fact.  But  it  is 
conceded  that  no  payments  were  made  and  that  fact  would 
seem  to  imply  disapproval  rather  than  acceptance  of  the 
work.  Indeed  plaintiffs'  failure  to  insist  on  receiving  the 
installments  provided  for  by  clause  8  of  the  contract,  and 
their  prosecution  of  the  work  non  obstante  seem  to  us  rather 
to  indicate  a  waiver  of  said  clause  than  a  disposition  by 
defendant  to  accept  the  tank. 

It  is  true  that  plaintiff  Ah  Choy  testifies  (p.  21)  that 
he  "asked  the  engineer  there  for  payment.  He  says  the 
money  has  not  been  remitted  to  Tientsin."  But  this  engi- 
neer, he  afterward  explains,  was  Mr.  Getz  whose  death 
again  prevents  us  from  testing  the  statement.  On  cross- 
examination,  however,  said  plaintiff  says: 

"Q.  Mr.  Ah  Choy  you  are  perfectly  positive  that  Mr.  Stevens  said 
nothing  to  you  about  paying  you  the  money  under  this  contract,  or 
not  paying  it  to  you? 

A.  No.     *     *     * 

Q.  At  any  time  while  you  were  engaged  in  this  work  did  you  make 
any  demand  on  the  Shanghai  office  for  payment? 

A.  Yes. 

Q.  How  did  you  make  that,  verbally  or  in  writing? 

A.  I  wrote  to  my  brother  and  made  demand. 

'Wigmore,  Ev.,  I,  578;  Act  of  Congress  of  March  3,  1901,  Sess.  II, 
31   U.   S.  Stats,  at  Large,  Ch.  854,  sec.  1064. 


LING  AH  CHOY  ET  AL.  V.  SOCONY,  APRIL  25,  1916.       567 

Q.  Was  that  before  or  after  you  saw  Mr.  Stevens  in  Tientsin? 

A.  I  forget. 

Q.  Did  you  make  any  request  on  the  Shanghai  office  of  the  Stand- 
ard Oil  for  payment  until  you  finally  stopped  work? 

A.  Yes. 

Q.  About   what   time — can   you   remember? 

A.  I  was  in  Tientsin  and  I  was  demanding  payment  from  the 
engineer. 

Q.  I  am  speaking  about  the  Shanghai  office? 

A.  About  the  10th  of  October,  because  I  could  not  get  payment  in 
Tientsin,  so  I  wrote  my  brother  to  go  and  see  the  Standard  Oil 
Company. 

Q.  You  did  not  write  direct? 

A.  I   did  not  write   directly  to  the   company. 

Q.  Is  it  not  true  Mr.  Ah  Choy  that  the  first  time  you  asked  the 
Standard  Oil  for  payment  of  this  contract  was  after  you  returned 
from   Tientsin? 

A.  From  Tientsin  I  went  to  Hankow.  My  brother  made  demand. 
After  I  got  back  I  made  demand. 

Q.  You  made  demand  when  you  returned? 

A.  Yes. 

Q.  That  was  the  first  demand  you  ever  made  on  the  Standard 
Oil  for  payment  at   Shanghai? 

A.  Yes."     (pp.  38,  39,  40.) 

Moreover  Mr.  Stevens  testifies: 

"Q.  Was  anything  said  between  you  and  Ah  Choy  as  to  the  pay- 
ment of  installments  on  the  contract? 

A.  I  told  him  that  I  would  not  give  him  anything  until  he  made 
the  work  good.     *     *     * 

Q.  Did  he  make  any  protest  against  the  withholding  of  the  money? 

A.  No. 

Q.  While  you  were  there,  did  he  ever  make  demand  upon  you  for 
the  payment  of  this  money? 

A.  No."     (pp.  6,  7.) 

And,  Mr.  Robertson  confirms  this  by  saying : 

"Q.  Did  you  hear  any  discussion  between  Mr.  Stevens  and  Ah 
Choy  with  reference  to  any  payment  of  installments? 

A.  He  told  him  that  the  payments  would  be  held  back  until  the 
work  was   made   satisfactory.     *     *     * 

Q.  Do  you  recall  if  Mr.  Ah  Choy  made  any  reply  to  Mr.  Stevens? 

A.  He  assured  Mr.  Stevens  that  he  would  guarantee  an  oil  tight 
tank,  and  that  he  had  built  many  of  these  tanks,  and  that  he  was 
quite  capable  of  carrying  out  the  work."     (pp.  6,  7.) 

Under  the  terms  of  the  contract  plaintiffs  might  have 
insisted  upon  the  payment  of  "25%  when  the  bottom  was 


568  I  EXTRATERRITORIAL  CASES. 

tested  and  laid."  Failing  to  receive  it  they  would  have 
been  justified  in  refusing  to  proceed.  But  they  chose  to 
waive  that  right  and,  whatever  their  continuance  of  the 
work  may  show,  it  certainly  does  not  bind  defendant,  nor, 
especially  in  view  of  its  repeated  refusal  to  pay,  does  it  even 
tend  to  show  an  acceptance  of  the  tank. 

III. 

Coming  now  to  the  claim  actually  pleaded,  viz.,  that 
plaintiffs  were  prevented  by  defendant  from  completing 
the  work,  it  will  be  observed  first  that  this  is  hardly  con- 
sistent with  the  argument  just  reviewed.  Defendant  could 
hardly  have  accepted  the  tank  and  at  the  same  time  pre- 
vented plaintiffs  from  rendering  it  acceptable.  According 
to  his  testimony,  as  we  have  seen,  plaintiff  Ah  Choy  was 
first  urged  to  proceed  with  the  work  and  the  want  of  ob- 
jection to  his  continuing  later  is  the  basis  of  plaintiffs'  claim 
that  defendant  is  now  estopped  to  object.  But  can  this 
testimony  be  invoked  simultaneously  with  other  evidence 
to  the  effect  that  plaintiffs  were  not  allowed  to  continue  ? 

Equally  inconsistent  seem  the  reasons  given  by  plaintiff 
Ah  Choy  for  the  refusal  to  let  him  proceed.  First  he 
says  that  it  was  because  he  refused  to  give  Mr.  Getz  money. 

"Q.   That  was  the  sole  reason  why  you  were  prevented  from  finish- 
ing, because  you  would  not  give  Mr.  Getz  money?     The  sole  reason? 
A.  Yes."  (p.  38.) 

But  a  charge  like  this  against  the  integrity  of  a  dead 
man — so  easy  to  make  where  there  is  none  to  defend — ought 
to  have  some  corroboration.  Especially  is  this  true  where, 
almost  on  the  same  page  said  plaintiff  gives  a  different 
reason,  saying  "Getz  told  us  that  you  have  finished  your 
work  and  your  contract  time  is  finished  and  you  can  go". 
For  the  latter  ground  Mr.  Getz  would  have  had  some  reason. 
Plaintiff  Ah  Choy  fixes  the  date  when  he  stopped  work  as 
"about  Nov.  12  or  13"  (p.  37) .  This  was  more  than  eight 
weeks  after  the  date  when  he  had  commenced — Sept.  15 
(p.  12).  But  the  contract  (clause  1)  required  completion 
"in  seven  weeks"  and  declared  (clause  10)  that  time  was 
"considered  important" — so  much  so  indeed  that  a  penalty 


LING  AH  CHOY  ET  AL.  V.  SOCONY,  APRIL  25,  1916.        569 

of  Tls.  50  was  imposed  for  each  day's  delay.  It  is  true 
that  said  plaintiff  says  there  were  ten  rainy  days  which 
should  be  excluded  and  in  answer  to  the  leading  question 
(p.  46) 

"Is  that  a  general  custom  in  China  among  builders  and  con- 
tractors?" 

he  says, 

"Yes.      Work  cannot  be  carried  on." 

But  the  contract  makes  no  such  exception  and  the  exist- 
ence of  a  custom  sufficiently  binding  to  override  the  contract 
would  seem  to  require  more  satisfactory  proof,-  and  should 
also  be  pleaded.* 

Still  another  reason  offered  by  plaintiff  Ah  Choy  for 
failure  to  continue  was  that 

"at  the  time  Getz  instructed  me  to  put  my  workmen  into  the  tank 
to  work  there  was  still  about  more  than  one  foot  of  water  in  the 
tank,  and  it  was  after  five  o'clock  in  the  evening.  I  told  him  the 
water  must  be  entirely  let  out  and  it  was  too  late  for  my  workmen 
to  work."     (p.  26.). 

On  this  point,  however,  we  have  another  witness,  Mr. 
Robertson,  who  testifies : 

"Q.  Do  you  know  whether  Ah  Choy  made  a  refusal  to  do  the 
work  inside  the  tank  when  asked  by  the  engineer,  because  of  water 
inside  the  tank? 

A.  Yes. 

Q.  Did  he? 

A.  Yes. 

Q.  What  was  said? 

A.  He  said  it  was  too  cold  and  too  wet  for  his  men  to  work  inside. 

Q.  Can  you  describe  to  us  exactly  what  the  actual  condition  of 
the  flooring  of  the  tank  was  at  that  time?  There  has  been  a  state- 
ment that  there  was  18  inches  of  water? 

A.  The  man  hole  door  at  the  bottom  of  the  tank  was  not  more 
than  twelve  inches  off  the  ground,  and  the  door  was  off,  so  it  was 
impossible  for  there  to  be  18  inches  of  water.  The  water  in  the 
tank  was  run  off  through  the  pipe  line  to  the  level  of  the  man  hole 
door.  The  door  was  then  taken  off  and  the  remainder  of  the  water 
siphoned  off. 

Q.  Was  it  possible  for  a  workman  to  get  in  and  work? 

A.  At  that  time  it  was  quite  possible  for  a  man  to  work  without 
standing  in  the  water  by  putting  down  planking. 


'12    Cyc.    1100. 

*  Governor  v.  Whithers  5  Gratt.   (Va.)   24,  50  Am.  Dec.  95;  Hight 
V.  Bacon,  126  Mass.  10,  30  Am.   Rep.  639. 


570  I  EXTRATERRITORIAL  CASES. 

Q.  It  was  quite  possible  to  put  planks  there  so  that  the  workmen 
would  be  on  dry  ground? 

A.  Yes. 

Q.  Some  of  the  work  was  up  the  side  of  the  tank  where  scaf- 
folding could  be  used? 

A.  Yes. 

Q.  So  far  as  you  can  judge,  there  was  nothing  to  prevent  the 
workmen  going  in  there? 

A.  Not  on  that  day."     (pp.  4,  15.) 

According  to  this  witness,  moreover,  plaintiffs  were  given 
fair  warning.     He  says: 

"Mr.  Getz  called  in  the  foreman  to  the  installation  office  and 
gave  him  the  ultimatum  that  if  the  work  was  not  carried  on  he 
would  be  put  off  the  job     *     *     * 

Q.  Do  you  know  if  any  time  was  fixed  in  which  the  contractor 
should  proceed  with  the  work  or  stop? 

A.  Yes,  if  he  did  not  start  work  by  two  o'clock  on  November  11 
he  would  be  put  off  the  job. 

Q.  Did  the  contractor  make  any  attempt  to  start  before  that  time? 

A.  No."     (pp.  17,  5.) 

It  must  be  remembered  also  that  defendant  was  anxious 
to  have  the  tank  completed  in  order  to  store  the  incoming 
cargo  and  it  seems  highly  improbable  that  it  would  have 
stopped  plaintiffs  arbitrarily. 

Finally  even  had  plaintiffs  established,  their  averment 
that  they  were  not  allowed  to  proceed  it  would  be  insuf- 
ficient. 

"One  who  seeks  to  recover  payment  for  work  partly  performed 
must  prove  that  the  work  which  he  did  was  done  according  to  his 
covenant.  Until  he  shows  this,  evidence  that  he  was  prevented  from 
finishing  it  by  the  defendant  is  irrelevant."  * 

IV. 

Another  claim  in  that  the  defects  in  the  tank  which 
rendered  it  unserviceable  were  due  to  improper  material, 
especially  rivets,  furnished  by  defendant  and  used  by  in- 
struction of  its  engineer. 

But  this  claim,  like  that  of  acceptance,  is  nowhere  pleaded 
and  we  might  dispose  of  it  on  that  ground.  To  avoid  any 
possible  injustice  to  plaintiffs,  however,  we  shall  examine 
the  evidence  relative  thereto. 

=  9  Cyc.  759. 


LING  AH  CHOY  ET  AL.  V.  SOCONY,  APRIL  25,  1916.        571 

The  contract  (clause  2)  requires  defendant  "to  furnish 
all  the  necessary  materials"  including  rivets  ''in  accordance 
with  the  shipping  list."  There  is  no  testimony  that  they 
did  not  so  accord.  Manifestly  if  they  were  defective  de- 
fendant would  be  the  sufferer.  A  priori  it  would  seem 
improbable  that  defendant  should  provide  improper  mate- 
rials for  its  own  tank. 

Plaintiff  Ah  Choy,  however,  testifies  regarding  the  rivets : 

"I  told  the  engineer  that  they  were  too  short.     He  said  they  came 
from  home,  can't  help  it. 
Q.  Who  was  the  engineer? 
A.  Getz."     (p.  14.) 

Plaintiffs'  foreman  testifies  (p.  7)  to  the  same  effect. 
Once  more,  then,  plaintiffs  rely  upon  an  alleged  conversation 
with  a  party  since  deceased.  Ah  Choy  admits  (p.  33)  that 
he  said  nothing  to  the  superior  of  Getz,  Mr.  Stevens,  who 
was  in  Tientsin  at  the  time,  and  claims  that  the  latter  did 
not  mention  rivets  to  him.     Mr.  Stevens,  however,  testifies : 

"Q.  Did  you  have  more  than  one  conversation  with  Ah  Choy? 

A.  Yes. 

Q.  How  often  did  you  see  him? 

A.  I  should  say  I   saw  him  every  other  day  while  I  was  there. 

Q.  Discussed  the  tank  with  him  every  other  day? 

A.  In  some  of  its  phases. 

Q.  Did  Ah  Choy  ever  give  you  to  understand  that  any  of  the 
materials  supplied  by  the  Standard  Oil  Company  for  this  tank  were 
in  any  way  defective? 

A.  No,  Sir. 

Q.   Did  you  have  any  discussion  with  him  in  reference  tO'  rivets? 

A.  Yes,  I  told  him  that  he  ought  not  to  cut  the  rivets. 

Q.  Did  he  make  any  reply  to  that? 

A.  He  said  the  rivets  were  too  long  and  it  was  the  practice  to 
cut  them  off  in  China. 

Q.  Why  did  you  refer  to  the  question  of  rivets? 

A.  Because  the  rivets  were  furnished  with  the  proper  length 
to  hold  the  plates,  and  if  you  cut  them  off  you  have  not  enough 
length  to  form  a  bottom  on  the  other  side  of  the  rivet  to  hold  it. 

Q.  Is  there  any  thing  in  the  appearance  which  would  indicate 
that  they  had  been  cut? 

A.  Yes,  only  the  small  size  of  the  head;  you  can  tell  after  the 
rivet  has  been  fixed."     (pp.  7,  8.) 

This  testimony  is  again  corroborated  by  that  of  Mr. 
Robertson  who,  in  detailing  what  Mr.  Stevens  said  to  Ah 
Choy,   declares 


572  I  EXTRATERRITORIAL  CASES. 

"He  also  spoke  about  the  riveting  and  told  him  that  all  the  holes 
that  were  out  of  alignment  had  to  be  reamed  out  and  fitted  with 
larger  bolts. 

Q.  Anything  more? 

A.  All  the  bad  rivets  were  then  to  be  cut  out  and  re-riveted." 
(p.  10). 

The  same  witness  further  testifies: 

"Q.  What  would  you  consider  were  the  defects  in  this  work  in 
the  second  stage? 

A.  So  far  as  I  could  see,  the  cutting  of  the  rivets  and  not  having 
sufficient  heads  to  insure  a  tight  job. 

Q.  What  do  you  mean  by  cutting? 

A.  The  contractor  cut  off  about  an  eighth  of  an  inch  on  a  great 
number  of  rivets. 

Q.  Yes,  that  you  know? 

A.  Yes. 

Q.  What  would  be  the  effect  of  cutting  off  the  rivets? 

A.  When  the  head  is  knocked  down  you  do  not  get  a  full  head — 
the  head  is  too  thin."     (p.  7.) 

We  think,  therefore,  that  a  preponderance  of  the  tes- 
timony shows  that,  whatever  Getz  may  have  said  (and  it 
must  always  be  remembered  that  he  cannot  be  heard)  a 
more  authoritative  agent  of  defendant  did  object  to  the 
manner  of  riveting,  and  that  the  results  complained  of 
were  due  to  such  manner  and  not  to  defects  in  the  rivets 
themselves. 

V. 

The  claim  of  $65.86  for  extra  materials  furnished  by 
plaintiffs  is  made  in  accordance  with  clause  9  of  the  con- 
tract which  provides  for  such  extras  "upon  the  written 
authorization  of  the  engineer."  Ah  Choy  produces  a  requi- 
sition order  (Ex.  B-1)  which  he  says  (p.  4)  was  given 
him  by  the  engineer,  for  all  but  two  of  the  items  in  his  bill 
(Ex.  B)  and  which  he  says  were  used  in  constructing  the 
tank.  There  being  no  contrary  evidence  plaintiffs  would 
seem  to  be  entitled  to  payment  for  such  bill  less  the  two 
items  not  shown  to  have  been  authorized,  the  deduction  of 
which  leaves  a  balance  of  $53.70. 

Plaintiffs  are  not  alone  in  presenting  points  other  than 
those  raised  by  the  pleadings.  Defendant's  brief  refers  to 
a  set  off  but  we  do  not  find  it  pleaded  in  the  answer.  Certain 
items  of  damage  are,  indeed,  set  forth  but  no  judgment 


UNITED  STATES  V.  SALSINO,  APR.  26,  1916.     573 

therefor  is  asked ;  indeed  the  answer  prays  for  no  affirmative 
relief  except  dismissal  and  costs.  We  shall  not,  therefore, 
dispose  of  the  case  on  the  theory  that  plaintiffs  earned  all 
or  part  of  the  contract  price  but  that  their  earnings  were 
offset  by  defendant's  damages.  We  hold  that  plaintiffs 
have  not  met  the  burden  of  proving  that  they  did  ''complete 
the  tank  in  a  satisfactory  manner;"  that  the  evidence  is 
insufficient  to  support  the  claim  set  forth  in  the  petition 
that  such  completion  was  wrongfully  prevented,  or  the 
other  two  claims  not  pleaded,  that  the  work  was  accepted 
and  that  the  materials  were  defective.  It  therefore  be- 
comes unnecessary  to  inquire  what  defendant  may  have 
paid  the  other  contractors. 

Judgment  is  rendered  in  favor  of  plaintiffs  and  against 
the  defendant  for  $53.70  and  (since  there  was  no  tender  of 
said  amount)  for  the  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Roman  Salsino. 

[Cause   No.   500;   filed  April   26,  1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  SELF  DEFENSE.     Force  used  in  self  defense  is  excusable  only  so 

far  as  is  reasonably  necessary. 

2.  Id.  :  Evidence  reviewed  and  found  sufficient  to  show  that  unneces- 

sary force  was   employed. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 
James  B.  Davies,  Esq.,  contra. 

Lobingier,  /.  ; 

The  defendant  pleads  not  guilty  to  an  information  charg- 
ing him  with 

"the  crime  of  felonious  assault;  in  that  the  said  Roman  Salsino,  on 
or  about  the  seventeenth  day  of  April,  nineteen  hundred  and  sixteen, 
at  Shanghai,  in  the  Republic  of  China,  and  within  the  jurisdiction 
of  said  Court,  did,  with  intent  to  do  bodily  harm,  and  without  just 
cause  or  excuse,  assault  one,  Yang  Ah  Fok,  a  citizen  of  the  Republic 
of  China  with  a  dangerous  weapon,  namely  a  knife,  having  a  blade 
about  five  and  one-half  inches  long." 


574  I  EXTRATERRITORIAL  CASES. 

It  appears  to  be  undisputed  that  on  the  night  of  said 
date  the  accused  and  a  companion  named  Aranas,  both  being 
Filipino  sailors  on  a  ship  from  Manila,  were  visiting  a 
brothel  on  Yalu  Road,  Shanghai,  on  emerging  from  which 
they  engaged  in  an  affray  in  the  course  of  which  the  com- 
plaining witness  Yang  Ah  Fok,  a  ricsha  coolie,  was 
stabbed  and  seriously  injured  so  that  he  is  still  in  the  hos- 
pital. The  principal  points  of  dispute  are  as  to  who  was 
the  aggressor  and  which  of  the  two  Filipinos  did  the  stab- 
bing. The  complaining  witness  declares  that  both  made  an 
unprovoked  assault  upon  him,  and  that  the  accused  Salsino 
used  his  knife  while  the  other  Filipino  struck  with  his 
fist.  To  the  constable  who  came  first  upon  the  scene  Yang 
Ah  Fok  likewise  identified  Salsino  as  the  one  who  stabbed 
him  and  he  is  corroborated  in  the  main  by  another  Chinese 
employed  in  a  Japanese  shop  nearby  and  who  claims  to 
have  witnessed  the  assault. 

On  the  other  hand  the  two  Filipinos  both  say  that  they 
encountered  a  number  of  Chinese  who  attacked  them  and 
that  they  acted  in  self  defense.  Salsino  first  maintained 
that  he  did  not  see  the  complaining  witness  there  and 
did  not  know  that  any  one  was  hurt,  but  later  he  says  to  the 

"Q.  Now  do  you  know  who  stabbed  that  ricsha  coolie? 
A.  I  don't  know  whether  it  was  my  companion  or  myself,  but  I 
did  not  intend  to  hurt  the  ricsha  coolie."     (p.  2.) 

He  admits  that  the  knife  produced  in  evidence  is  his 
and  that  he  had  it  concealed  on  his  person  but  says  that 
it  remained  there  until  taken  by  a  constable  and  that  he 
himself  neither  drew  nor  used  it. 

Aranas,  the  other  Filipino,  says  that  he  did  not  see  his 
companion  with  a  knife  but  that  he  himself,  tho  some  one 
had  caught  his  hand,  succeeded  in  extracting  his  corta- 
plumas  (penknife),  opening  it  with  his  teeth  and  the  other 
hand,  and  using  it  and  that  he  afterward  threw  it  away. 
He  also  admits  that  "when  I  pushed  them  with  a  knife  in 
my  hand  I  may  have  probably  hurt  a  Chinese  but  it  was  not 
intentionally  done." 

We  confess  to  some  degree  of  skepticism  regarding  the 
story  of  each  group.     It  is  unreasonable  to  suppose  that 


UNITED  STATES  V.  SALSINO,  APR.  26,  1916.  575 

the  complaining  witness  alone  wantonly  attacked  the  two 
Filipinos.  But  it  also  seems  unlikely  that  the  latter,  who 
were  strangers  in  a  strange  land,  made  an  entirely  unpro- 
voked assault  upon  the  former.  We  are  disposed  to  believe 
that  others  than  these  three  were  involved. 

But  accepting  at  its  face  defendant's  claim  that  he  acted 
in  self  defense  that  could  only  excuse  him  if  he  used  no 
more  force  than  was  reasonably  necessary  to  repel  his 
assailants  '  and  according  to  his  own  testimony  the  com- 
plaining witness  could  hardly  have  been  an  assailant  be- 
cause the  accused  did  not  even  see  him.  Besides  it  is  not 
claimed  that  any  of  the  Chinese  had  weapons  and  the  fact 
that  one  of  them  was  seriously  wounded  while  both  Filipinos 
were  uninjured  strongly  points  to  the  use  of  unnecessary 
force. 

It  is  urged  by  defendant's  counsel  that  his  knife  contains 
no  blood  stains  and  that  this  affords  ample  corroboration 
of  the  Filipinos.  But  no  microscopic  or  other  expert  exam- 
ination of  the  knife  seems  to  have  been  made  by  either 
side  and  in  the  absence  thereof  we  are  unable  to  say  that 
some  of  the  stains  appearing  thereon  were  not  caused  by 
blood  rather  than  rust.  Sergeant  McKinzie  testifies  that 
both  of  defendant's  hands  were  bloody.  This  is  not  denied 
and  strongly  indicates  that  the  accused  participated  in  what- 
ever force  was  used.  And  while  one  disinterested  witness 
other  than  complainant  identifies  the  accused  as  the  one 
who  used  the  knife,  the  testimony  of  the  latter's  companion 
amounts  to  no  more  than  that  he  did  not  see  the  accused 
use  it.  Moreover  it  seems  unlikely  that  a  wound  so  serious 
as  that  received  by  the  complainant  would  have  resulted 
from  the  use  of  what  Aranas  calls  "simply  a  penknife  for 
cutting  nails." 

The  Federal  Penal  Code  provides  that 

"Whoever  shall  unlawfully  strike,  beat,  or  wound  another,  shall  be 
fined  not  more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  six  months,  or  both."  ^ 


*  Corpus  Juris,  V,  746.  Such  is  also  the  doctrine  which  would  be 
applied  were  defendant  tried  in  his  own  country.  Philippine  Penal 
Code,  Art.  8  (4  [2]). 

=  Sec.   276,  par.  4. 


576  I  EXTRATERRITORIAL  CASES. 

We  find  the  evidence  sufficient  to  bring  the  case  within 
this  provision  and  the  accused  is  accordingly  sentenced  to 
six  months  of  imprisonment,  to  be  served  in  Bilibid  Prison, 
territory  of  the  Philippines,  and  to  pay  the  costs  of  this 
prosecution. 

On  the  same  day  another  sentence  was  imposed  upon  said  de- 
fendant in  cause  No.  501,  reading  as  follows: 

The  accused  pleads  guilty  to  an  information  charging  him  with 
"the  crime  of  carrying  a  concealed  dangerous  weapon;  in  that  *  * 
he  did  have  concealed  about  his  person  a  dangerous  weapon  *  * 
being  a  knife  with  a  blade  about  five  and  one  half  inches  long." 

The  statute  ^  under  which  this  prosecution  is  brought  provides  that 
the  offender 

"shall,  for  the  first  offense,  forfeit  and  pay  a  fine  or  penalty  of  not 
less  than  fifty  dollars  nor  more  than  five  hundred  dollars,  of  which 
one  half  shall  be  paid  to  any  one  giving  information  leading  to  such 
conviction,  or  be  imprisoned  in  the  jail  *  *  not  exceeding  six 
months,  or  both  such  fine  and  imprisonment,  in  the  discretion  of  the 
courts." 

Since  the  accused  has  already  been  convicted  and  sentenced  in 
cause  No.  500  to  imprisonment  for  an  assault  involving  the  same 
weapon  to  the  possession  of  which  he  here  pleads  guilty  we  are 
disposed  in  this  case  to  impose  no  more  than  a  fine;  especially  as 
in  that  way  alone  will  the  victim  of  the  assault  be  able  to  obtain 
any  indemnity  for  his  injuries. 

The  accused  is  accordingly  sentenced  to  pay  a  fine  of  fifty  dollars, 
United  States  currency,  with  subsidiary  imprisonment  in  Bilibid 
Prison,  territory  of  the  Philippines,  at  the  rate  of  one  day  for  every 
two  dollars  unpaid  and  the  costs  of  this  prosecution.  One  half  of 
the  amount  of  said  fine  is  adjudged  payable  to  Yang  Ah  Fok,  the 
victim  of  the  assault,  and  the  one  giving  information  which  led  to 
this  conviction. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Shanghai  Tannery  Co.,  Ltd.,  v.  American  Trading  Co. 

[Cause  No.  466;  filed  June  24,  1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRACTS:  Aggregatio  Mentium.     There  can  be  no  contract  with- 

out a  meeting  of  minds. 

2.  Id.  :   Id.  :   Agency.     Where  an  agent,  misled  by  the  mistake  of  a 

•Act  of  Congress  of  July  12,  1892,  sess.  I,  27   U.   S.   Stats,  at 
Large,  Ch.  159,  sec.  2,  p.  116. 


S'HAI  TANNERY  CO.  V.  TRADING  CO.,  JUNE  24,  1916.     577 

cable  company,  erroneously  reported  that  his  principal  had  ac- 
cepted a  certain  offer  it  cannot  be  said  that  the  latter's  mind 
ever  met  the   proposer's. 

3.  Id.  :   Id.  :   In  such  case  the  cable  company  is  the  principal's  agent 

to  deliver  only  the  actual  message  given  it. 

4.  Id.  :   Evidence  found  insufficient  to  show  a  change  of  position  by 

plaintiff  after  announcement  of  acceptance  and  before  notice 
that  it  was  erroneous. 

Francis  Ellis,  Esq.,  with  whom  were  Messrs.  Jernigan  & 
Fessenden,  represented  by  Mr.  Fessenden,  for  plaintiff. 
Messrs.  Flerning  &  Davies  by  Mr.  Fleming,  for  defendant. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  damages  for  the  non-delivery 
of  a  quantity  of  tanning  extract  known  as  ''quebracho" 
and  alleged  to  have  been  sold  by  defendant  to  plaintiff. 
The  answer  is  a  general  denial. 

It  appears  from  the  undisputed  evidence  that  defendant 
had  previously  sold  plaintiff  a  shipment  of  the  same  article 
at  G.  $135  per  ton  and  that  in  February,  1915,  according 
to  defendant's  principal  witness,  plaintiff 

"inquired  if  we  could  supply  more  Quebracho.  We  told  them  that 
judging  from  past  quotations  we  had  just  received,  made  from  our 
New  York  office  to  our  Japan  office,  we  could  supply  them  on  the 
basis  of  our  last  sale.  *  *  *  We  cabled  to  New  York  that  same 
night,  which  was  the  12th,  offering  the  tei'ms." 

Plaintiff's  manager,  Mr,  Reiss,  testifies: 

"They  told  me  they  can  possibly  take  it  at  about  the  same  price 
as  last.  Then  they  are  wiring  on  behalf  of  other  firms.  I  said  in 
that  case  you  could  include  fifteen  tons  of  Quebracho  on  behalf  of 
the  Shanghai  Tannery  Co." 

The  cable  sent  by  the  Shanghai  office  of  defendant  read, 
when  translated  from  code,  as  follows: 

"you  may  buy  wire  at  once  if  not  in  order  Quebracho  (same  quality 
as  before)  shipment  (to)  5  tons  Vladivostok  15  tons  Shanghai  $122 
(per  ton  of  2,240  lbs.  cif.)." 

To  this  a  reply  was  received  on  Feb.  14  reading : 

"Can  you  extend  time  to  work  offer  until  Monday." 

On  the  day  following  the  Shanghai  office  of  defendant 
received  from  the  New  York  office  another  cable  covering 

14008  O.  W. 37 


578  ^   EXTRATERRITORIAL   CASES. 

several   subjects   and  the  last  portion   of  which   was   at 
first  translated  to  read  as  follows: 

"selling  it   (them)   2nd  subject  cannot  accept  offer  nothing  available 
at  present  try  London  office." 

Defendant's  importing  manager,  who  handled  these  ca- 
bles, testifies  that  he  understood  this  "2nd  subject"  to  refer 
to  Chesnut  Oak  Extract,  which  had  been  mentioned  in  a 
previous  portion  of  the  cable,  that  under  the  company's 
cable  rules  a  sale  was  treated  as  approved  if  no  reply  was 
received  within  thirty-six  hours,  and  that  he  thus  consi- 
dered the  "quebracho"  sale  as  confirmed.  Accordingly  on 
February  19  (the  Chinese  New  Year  holidays  having  mean- 
while intervened)  he  wrote  as  follows: 

"The  Shanghai  Tannery  Co.,  Ltd., 

Hugo  Reiss  &  Co.,  Managers, 
Present. 
Dear  Sirs, 

We  beg  to  inform  you  that  our  New  York  Office  has  accepted 
your  offer  of  G$  134.00  per  ton   Cif  &  c  for   Quebracho  extract  for 
shipment  during  March.     War   risk  extra. 
Yours  faithfully. 

The  American  Trading  Co., 

(Sgd.)     P.  L.  Byrne, 

Sub-Agent." 

This  appears  to  have  been  the  only  writing  between  the 
parties  before  the  alleged  sale. 

The  code  word  translated  "selling  it  (them)"  was  subse- 
quently found  to  have  been  mutilated,  that  discovery  being 
made  upon  the  return  of  defendant's  local  manager,  who 
had  meanwhile  been  absent.  The  word  was  then  repeated, 
whereupon  it  was  found  to  mean  "refer  to  your  cable  84" 
(the  number  of  the  original  offer)  so  that  its  correct 
reading  was :  "refer  to  your  cable  2nd  subject  (Quebracho) 
cannot  accept  offer.  Nothing  available  at  present.  Try 
London  office."  In  other  words  what  was  first  assumed  to 
be  an  acceptance  proved  to  be  a  flat  rejection. 

Defendant's  witness  further  testifies: 

"We  called  up  the  Shanghai  Tannery's  office  and  advised  them 
that  the  acceptance  sent  around  w^as  an  error  as  we  had  detected 
from  the  repetition  of  the  mutilated  word  in  our  cable  that  they  did 
not  accept  Quebracho. 


S'HAI  TANNERY  CO.  V.  TRADING  CO.,  JUNE  24,  1916.    579 

Then  they  asked  me  to  come  around.  I  asked  for  Mr.  Reiss  and 
1  went  over  and  interviewed  Mr.  Komor  and  explained  the  matter 
to  him,  and  he  stated  that  as  that  was  not  in  his  department  I  had 
better  see  Mr.  Reiss.  *  *  *  This  was  either  the  20  or  the  21 
of  February.  I  eventually  did  meet  Mr.  Reiss  in  his  office,  explained 
to  him  how  our  acceptance  had  been  based  on  a  cable  mutilation  and 
that  we  could  not   supply  him." 

On  this  point  plaintiff's  manager  says: 

"I  think  Mr.  Boulon  came  to  the  office  and  said  there  was  a  mistake 
in  the  telegram,  and  that  their  offer  read  something  quite  different 
to  what  they  had  believed  and  therefore  they  could  not  accept  the 
order.  I  told  him  that  was  a  very  serious  matter  because  they  knew 
the  circumstances  as  to  how  the  contract  was  made  and  how  we 
needed  it,  and  we  told  him  he  had  to  confirm  that  in  writing." 

The  principal  difference  between  these  two  versions  re- 
lates to  the  time  of  the  conversation.  Mr.  Boulon,  as  we 
have  seen,  places  it  at  one  or  two  days  after  the  letter  of 
Feb.  19.  Mr.  Reiss  (p.  4)  thinks  it  was  "about  10  to  14 
days  afterwards."  But  he  is  referring,  of  course,  to  the 
time  when  the  message  reached  him,  while  Boulon,  it  will 
be  remembered,  says,  and  it  is  not  disputed,  that  he  first 
interviewed  Komor,  another  of  plaintiff's  employees. 

Moreover  in  its  letter  to  plaintiff  of  March  11  (Ex.  B), 
after  referring  to  the  mutilated  cable  and  the  consequent 
error,  defendant  says:  "We  immediately  advised  you  of 
this  fact." 

This  statement  is  not  questioned  in  plaintiff's  reply 
(Ex.  C).  Finally  it  seems  to  us  only  natural  that  de- 
fendant should  have  given  notice  of  the  error,  as  it  claims 
to  have  done,  at  the  earliest  practicable  moment.  Any 
other  course  would  have  been  most  unbusiness-like  and 
clearly  prejudicial  to  its  own  best  interests. 

The  question  then  arises  whether,  from  such  negotiations, 
any  contract  resulted.  We  need  spend  little  time  on  de- 
fendant's claim  that  its  letter  of  February  19,  1915,  was 
insufficient  to  satisfy  the  Statute  of  Frauds.  That  claim 
has  been  decided  adversely  by  this  court  ^  in  an  opinion 
which  restates  a  well  settled  rule.  Nor  can  we  agree  with 
counsel's   contention   that  the   contract,   if   made,    lacked 

*Bell  V.  Sauer,  ante,  p.  240. 


580  I  EXTRATERRITORIAL  CASES. 

mutuality.  The  case  -  invoked  on  this  point  differs  totally 
from  that  at  bar,  being  an  action  on  an  offer  not  alleged 
to  have  been  accepted. 

But  the  question  here  presented  goes  deeper  than  either 
of  these  objections.  It  is  a  fundamental  doctrine  of  the 
world's  chief  legal  systems  that  in  every  contract  the  minds 
of  the  parties  must  come  together  on  all  its  terms.  This 
was  the  aggregatio  mentiimi  of  the  Roman  law — the  basis 
of  its  consensual  contracts  ■■  as  well  as  of  their  successors  in 
the  modern  civil  law.'  The  common  law  form  of  the  doc- 
trine has  thus  been  expressed  by  an  elementary  writer:^ 

"The  actual  contract  consists  in  the  meeting  of  the  minds  of  the 
parties  upon  the  same  thing,  and  in  the  same  sense.  In  other  words, 
the  thing,  intended  to  be  proposed  and  actually  proposed  on  one  side, 
must  be,  in  all  material  respects,  the  very  thing  intended  to  be 
accepted  and  actually  accepted  on  the  other.  In  the  absence  of  this 
meeting  of  minds  there  can  be  no  contract." 

The  principle  has  often  been  applied  to  situations  like 
that  presented  here.  In  a  leading  English  case,"  defendant 
sent  a  written  offer  to  sell  real  estate  for  £1,100  which 
was  a  mistaken  footing  of  several  items,  added  hurriedly 
and  aggregating  £2,100.  After  acceptance  he  discovered 
the  mistake  and  gave  notice  of  it  but  the  acceptor  sought 
to  hold  him  to  his  offer  and  brought  suit  for  specific  per- 
formance.    The  bill  was  dismissed. 

Where  appellee  dictated  a  letter  offering  a  consignment 
of  potatoes  at  fifty-five  cents  per  bushel  and  the  stenog- 
rapher, by  mistake,  transcribed  the  amount  as  "thirty-five" 

=  McDonald  v.   Bewick,   51   Mich.   79,   16   N.   W.   240. 

^  Mackenzie,  Roman  Law,  254  note   1. 

'France.     Civ.  Code,  art.   1108. 

Germany.     Civ.  Code,  art.  154. 

Italy.     Civ.  Code,  art.  1104. 

Spain.     Civ.  Code,  art.  1261. 

°  Robinson,  Elementary  Law  (1st  ed.)  sec.  172.  "This  above  all 
others,  perhaps,  is  an  essential  element  of  every  contract."  John  D. 
Lawson,  in   9   Cyc.   245,   citing  many  authorities. 

*  Webster  v.  Cecil,  30  Beavan,  62  (1861).  Cf.  Burkhalter  v.  Jones, 
32  Kan.  5,  3  Pac.  559  (not  expressly  overruled  in  Griffin  v.  O'Neil, 
48  Kan.  117,  29  Pac.  143)  ;  Chute  v.  Quincy,  156  Mass.  189,  30  N. 
E.  550;  Everson  v.  Granite  Co.  65  Vt.  658,  27  Atl.  320. 


S^HAI  TANNERY  CO.  V.  TRADING  CO.,  JUNE  24,  1916.     581 

an  acceptance  was  held  ineffectual  to  bind  appellee  to  deliver 
at  the  lower  price. 

"Under  the  allegations,"  observed  the  court,'  "the  minds  of  the 
contracting  parties  never  met  upon  a  proposition  to  sell  potatoes  at 
35  cents  per  bushel,  because  it  is  alleged  that  the  price  was  a  mis- 
take, and  that  it  was  so  understood  by  appellants,  to  whom  it  was 
made.  'As  mutual  assent  is  necessary  to  the  formation  of  a  con- 
tract (i.  e.,  of  sale),  it  follows  that  an  error  or  mistake  of  facts 
in  that  which  goes  to  the  essence  of  the  agreement,  and  therefore 
excludes  such  assent,  prevents  the  formation  of  the  contract,  since 
each  party  is  really  agreeing  to  something  different,  notwithstanding 
the  apparent  mutual  assent.'  ^  We  think  it  is  plain  that  there  was 
no  contract  by  appellee  to  sell  the  potatoes  at  35  cents  per  bushel." 

It  is  true  that  the  court  found  that  appellants  knew  that 
a  mistake  had  been  made;  but  the  telegram  notifying  them 
thereof  was  not  sent  until  four  days  after  acceptance  while 
in  the  case  at  bar,  as  has  been  shown,  notice  of  the  mistake 
was  given  to  at  least  one  of  plaintiff's  representatives  one 
or  two  days  after  the  letter  announcing  acceptance. 

Acceptance  of  an  offer  to  sell  bolting  cloth,  whose  market 
price  was  from  two  to  six  dollars  per  yard,  "at  5  cents  a 
yard  that  Gale  (another  dealer)  would  charge"  was  held 
not  to  entitle  the  acceptor  to  retain  cloth  received  there- 
under by  paying  only  five  cents  a  yard ;  since,  in  the  court's 
opinion,  there  was  an  obvious  mistake  in  omitting  the  word 
"less." 

"But,"  it  continued,  "if  Moses'  claim  be  true,  that  he  did  not  accept 
the  offer  to  sell  for  five  cents  a  yard  less  than  Gale  would  charge 
him,  the  minds  of  Butler  and  Moses  never  'assented  to  the  same 
thing  in  the  same  sense,'  and  no  contract  was  made  by  them  for 
the   sale   of  this   cloth." ' 

Where  the  owner  of  cattle,  who  had  refused  $163  for 
them,  offered  soon  thereafter  to  take  $161.50,  meaning,  as 
it  afterward  appeared,  $261.50  it  was  held  that  the  acceptor 
could  not  demand  the  cattle  for  the  smaller  price. 

"It  is  evident,"  said  the  court,"  "that  the  minds  of  the  parties  never 
met  upon  the  question   of  the  price  to  be  paid  for  the  cattle,   and 


Mummenhoff  v.  Randall,  19  Ind.  App.  44,  49  N.  E.  40. 
Citing  21  Am.  &  Eng.  Encyc.  of  Law,  459. 
Butler  V.  Moses,  43  Ohio  St.,  166,  1  N.  E.  316. 
"Harran  v.   Foley,  62  Wis.  584,  22  N.  W.  837. 


582  I  EXTRATERRITORIAL  CASES. 

therefore  there  was,  in  fact,  no  sale.  The  pretended  purchase  having 
been  repudiated  by  the  defendant  before  the  cattle  were,  in  fact, 
delivered  to  the  plaintiff,  and  the  earnest  money  tendered  back  to 
him  by  the  defendant,  the  plaintiff  acquired  no  title  to  the  cattle, 
and   judgment  was   properly   rendered   against   him." " 

For  the  question  in  all  such  cases  is  not  whether  or  when 
there  was  a  formal  acceptance  but  whether  the  acceptor  has 
meanwhile  changed  his  position,  relying  in  good  faith  upon 
the  contract.  In  the  case  at  bar  much  was  said  by  plain- 
tiff's witness  regarding  a  contract  by  which  it  had  under- 
taken to  supply  a  large  quantity  of  sole  leather  each  month. 
If  such  a  contract  had  been  entered  into  after  Feb.  19,  the 
date  of  the  supposed  acceptance,  and  before  plaintiff  was 
notified  that  such  acceptance  was  erroneous,  a  different  case 
might  be  presented.  But  there  is  no  such  testimony.  For 
aught  that  appears  this  contract  with  a  third  party  had 
been  made  before  Feb.  19. 

In  a  case  ^-  decided  by  Lord  Romilly  that  eminent  equity 
jurist  held  that  where  a  conveyance  had  not  been  executed 
mutual  mistake  was  not  necessary  to  justify  reformation 
of  the  contract  but  that 

"as  it  is  in  the  power  of  the  Court  to  put  the  parties  in  the  same 
position  as  if  the  contract  had  not  been  executed,  the  Court  will 
interfere,  provided  the  party  aggrieved  comes  speedily  for  redress." 

Where  a  vendee  sued  for  the  non-delivery  of  four  carloads 
of  matches  the  source  of  the  dispute  was  thus  stated  ^"^  by 
Lamar,  J.,  later  of  the  Federal  Supreme  Court: 

"The  price  of  144  boxes,  each  containing  100  matches,  was  80 
cents;  and  the  defendant  argued  from  this,  in  connection  with  the 
other  items  in  the  price  list,  that  in  the  sale  of  matches  the  unit 
is  a  gross,  or  144  boxes,  each  containing  100  matches.  No.  200, 
'220  matches  in  slide  box,  12  boxes  in  package,  12  packages  in  case, 
making  144  boxes  in  2  gross  case,  1.40  per  case.'  No.  500,  '500 
matches  in  slide  box,  12  boxes  in  package,  12  packages  or  144  boxes 
in  5  gross  case,  3.25  per  case.'  The  defendant's  brokers,  on  these 
quotations,  procured   an   order  from  the   plaintiff  for   cases   of   No. 


"  Citing  1   Wharton,   Contracts,  4. 
*' Harris  v.  Pepperell,  L.  R.  5  Eq.  Cas.,  1    (1867). 
"  Singer  v.  Grand  Rapids  Match  Co.,  117   Ga.,  86,  43   S.   E.,  755. 
Cf.  Shelton  v.  Ellis,  70  Ga.,  297. 


S'HAI  TANNERY  CO.  V.  TRADING  CO.,  JUNE  2  4,  1916,    583 

200  and  cases  of  No.  500.  If  the  plaintiff's  construction  of  the 
quotation  is  correct,  it  would  have  required  about  five  cars  to  con- 
tain the  goods  bought;  and  only  one  if  the  defendant  is  correct. 
As  to  No.  200  an  ambiguity  may  arise  from  the  double  use  of  the 
word  'case.'  It  appears  that  144  boxes  were  to  be  packed  in  a  case, 
and  two  of  these  cases  were  then  to  be  packed  in  a  still  larger  case, 
and  it  is  this  large  case  which  the  plaintiff  says  was  quoted  at  $1.40. 
For  the  reasons  hereafter  to  be  given,  we  think  that  the  real  subject- 
matter  of  the  quotation  was  the  small  case,  containing  144  boxes." 

In  upholding  a  judgment  of  non-suit  the  court  said : 

"If  the  plaintiff  had  actually  received  the  five  car  loads  of  matches, 
believing  in  good  faith  that  the  seller  understood  the  contract  in 
the  same  way  as  the  buyer,  and  if  thereafter  the  latter  had  changed 
his  position^ — -had  sold  the  goods  at  a  price  based  on  his  understand- 
ing of  the  quotations,  and  otherwise  acted  upon  what  he  thought 
was  the  mutual  understanding  of  the  parties — and  if  thereafter  the 
seller  had  brought  suit  for  several  times  the  amount  for  which  the 
buyer  supposed  he  was  liable,  the  seller  would  be  held  to  his  con- 
tract. Even  if  the  contract  was  ambiguous,  the  rule  would  be  ap- 
plied that  an  instrument  is  to  be  construed  most  strongly  against 
the  one  who  prepares  it.  Civ.  Code,  sec.  3675  (4).  But  that  is  not 
this  case.  The  seller  has  not  parted  with  the  goods,  and  the  buyer 
has  not  paid  the  purchase  money.  It  is  true  that  he  claims  that 
he  had  taken  orders  to  deliver  matches  out  of  this  lot,  and  that  he 
would  have  made  a  profit,  had  the  matches  been  delivered,  and  thus 
resold.  But  the  loss  of  profits  anticipated  is  not  sufficient  to  prevent 
the  application  of  the  rule  by  which  this  case  is  governed." 

Passing  to  a  discussion  of  the  fundamental  question  be- 
fore us  the  court  employs  language  which  appears  very- 
pertinent  here: 

"But  the  plaintiff  insists  that  the  broker  wrote  to  the  defendants, 
inquiring  as  to  whether  they  had  not  made  a  mistake  in  the  quota- 
tions, and  received  a  reply  that  the  quotations  were  correct.  This 
was  true.  The  quotations  were  correct.  The  mistake  arose  from  the 
construction  placed  thereon  by  the  defendant  differing  so  radically 
from  that  of  the  plaintiff.  Under  the  limitations  previously  stated, 
the  defendant  will  not  be  visited  vdth  a  penalty  because  of  the  mis- 
construction thereof  by  the  opposite  party.  A  slip  of  the  pen  or  a 
slip  of  the  tongue  ought  not  to  be  treated  as  deliberate  contract, 
unless  the  other  party  has  acted  thereon  to  his  injury.  There  is 
nothing  in  the  principle  recognized  by  any  of  the  authorities  cited 
which  in  any  way  tends  to  relieve  parties  from  their  contracts,  or 
to  let  them  out  of  hard  bargains.  When  such  contracts  have  been 
made,  the  courts  are  called  on  to  enforce  them.     But  the  question  in 


584  I  EXTRATERRITORIAL  CASES. 

this  and  similar  cases  is,  has  there  been  a  contract  made?  Did  the 
minds  of  the  parties  meet?     *     *     * 

The  requirement  of  Civ.  Code,  sec.  3526,  that  there  must  be  an 
identification  of  the  thing  sold,  and  an  agreement  as  to  the  price, 
is  but  an  expression  of  the  general  rule  of  law,  and  another  way 
of  saying  that  the  minds  of  the  parties  must  meet,  both  as  to  the 
price  and  as  to  the  thing  bargained  for,  which  may  include  an  iden- 
tification of  the  quantity  sold.  The  evidence  here  clearly  indicates 
that  the  minds  of  the  buyer  and  the  seller  did  not  meet.  The  dif- 
ference in  the  quantity  is  so  great,  and  the  result,  if-  plaintiff's  con- 
tention is  sustained,  would  work  such  a  manifest  hardship  on  the 
seller,  and  such  an  undue  advantage  to  the  buyer,  that  damages 
will  not  be  allowed  for  the  breach  of  such  an  alleged  contract." 

Thus  far  we  have  considered  the  decisions  of  English  and 
American  State  Courts.  But  the  doctrine  there  announced 
is  equally  well  recognized  in  the  Federal  tribunals  whose 
jurisprudence  more  directly  governs  here.  As  early  as 
1846  the  principle  was  applied  '^  under  that  system  to  a 
transaction  in  which  a  quantity  of  shingles  was  delivered 
at  a  price  which  was  undisputed.  But  the  plaintiff  claimed 
to  have  sold  them  by  the  bunch  and  the  defendant  to  have 
purchased  by  the  thousand.     The  Court  charged  that 

"the  parties  in  this  case  relied  upon  a  special  contract  made  at  the 
time  of  the  delivery  of  the  shingles;  and  if  one  was  then  actually 
made  in  fact  and  in  law,  the  amount  recovered  must  conform  to  it. 
But  in  order  to  constitute  such  a  contract  and  make  it  binding  on 
the  parties,  the  minds  of  both  must  have  assented  to  the  same  terms. 
If  they  did  not,  there  was  no  aggregatio  mentium,  no  agreement  or 
understanding  of  both  to  one  sum  or  stipulation.  If  one  agreed  to 
$3.25  per  bunch,  and  the  other  to  $3.25  per  thousand,  only  half  as 
high  a  price,  there  was  in  truth  no  contract,  as  it  takes  two,  we  all 
know,  both  in  fact  and  in  law,  to  make  a  contract." 

Where  a  contractor  sought  by  a  literal  interpretation 
to  hold  the  government  for  an  unreasonable  amount  the 
Supreme  Court  applied  the  rule  that 

"where  parties  intend  to  contract  by  parol,  and  there  is  a  mis- 
understanding as  to  the  terms,  neither  is  bound,  because  their  minds 
have  not  met."  "^ 

In  a  hard  fought  case  which  proceeded  all  the  way  from 
the  Circuit  Court,  thru  the  Court  of  Appeals  to  the  Supreme 

"  Greene  v.  Bateman,  2  Woodb.  &  M.,  359,  10  Fed.  Cas.,  1126. 
"  Scott  V.  United  States,  12  Wall.,  443,  20  L,  ed.,  438.     Cf.  Hume 
v.  United  States,  132  U.  S.,  406,  33  L.  ed.,  393. 


S'HAI  TANNERY  CO.  V.  TRADING  CO.,  JUNE  24,  1916.    585 

Court,^''  a  corporate  contractor  had  submitted  a  bid  for 
certain  municipal  work,  of  considerable  magnitude,  speci- 
fying the  price  of  one  portion  as  fifty  cents  per  cubic  yard 
when,  as  it  afterward  claimed,  tho  this  was  disputed,  it 
meant  to  specify  seventy  cents.  The  municipal  board  voted 
to  accept  the  bid  as  presented  and,  after  being  advised  of 
the  contractor's  mistake,  invoked  a  clause  in  the  city  charter 
providing  that  no  bid  should  be  withdrawn  or  canceled 
until  the  board  should  have  let  the  contract.  Thereupon 
the  contractor  sought  relief  in  the  Federal  Circuit  Court, 
the  judge  of  which  in  granting  "a  decree  rescinding  its 
proposals  and  enjoining  the  defendants  as  prayed  for  in 
the  bill"  said  (and  its  language  was  later  expressly  ap- 
proved by  the  Supreme  Court)  : 

"The  bill  proceeds  upon  the  theory  that  the  bid  upon  which  the 
defendants  acted  was  not  complainant's  bid ;  that  the  complainant  was 
no  more  responsible  for  it  than  if  it  had  been  the  result  of  agraphia 
01  the  mistake  of  a  copyist  or  printer.  In  other  words,  that  the 
proposal  read  at  the  meeting  of  the  board  was  one  which  the  com- 
plainant never  intended  to  make  and  that  the  minds  of  the  parties 
never  met  upon  a  contract  based  thereon.  If  the  defendants  are 
correct  in  their  contention  there  is  absolutely  no  redress  for  a  bidder 
for  public  work,  no  matter  how  aggravated  or  palpable  his  blunder. 
The  moment  his  proposal  is  opened  by  the  executive  board  he  is 
held  as  in  a  grasp  of  steel.  There  is  no  remedy,  no  escape.  If, 
thru  an  error  of  his  clerk,  he  has  agreed  to  do  work  worth 
$1,000,000  for  $10,  he  must  be  held  to  the  strict  letter  of  his  con- 
tract while  equity  stands  by  with  folded  hands  and  sees  him  driven 
into  bankruptcy.  The  defendants'  position  admits  of  no  compromise, 
no  exception,  no  middle  ground. 

It  is  argued  that  the  mistakes  were  not  mutual  and,  therefore,  that 
there  is  no  ground  of  equitable  cognizance.  It  should  be  remembered, 
however,  that  the  complainant  does  not  seek  to  reform  a  contract  but 
to  be  relieved  from  an  unconscionable  bid  by  its  rescission  or  cancela- 
tion. ^  Equity  cannot  reform  an  agreement  unless  both  parties  were 
mistaken,  but  it  can  interfere  to  prevent  the  enforcement  of  an 
unjust  agreement  induced  by  the  mistake  of  one."  " 

"MofFett  V.  City  of  Rochester,  178  U.  S.  373,  44  L.  ed.  1108;  91 
Fed.  Rep.  28;  82  Fed.  Rep.  255. 

"Moffett  V.  City  of  Rochester,  82  Fed.  256,  citing  15  Am.  & 
Eng.  Enc.  Law,  p.  647;  Crowe  v.  Lewin,  95  N.  Y.  423;  Smith  v. 
Mackin,  4  Lans.  41;  Bradford  v.  Bank,  13  How  (U.  S.)  57,  68, 
14  L.  ed.  49;  Hartford,  etc.,  Co.  v.  Jackson,  24  Conn.  514;  Snell  v. 
Insurance  Co.,  98  U.  S.  85,  25  L.  ed.  52. 


586  I   EXTRATERRITORIAL  CASES. 

The  Court  of  Appeals'^  took  a  different  view;  but  its 
judgment  was  reversed  and  that  of  the  Circuit  Court  af- 
firmed in  an  unanimous  opinion  by  '"  the  Supreme  Court. 

Some  of  these  cases,  indeed,  suggest  bad  faith  on  the 
acceptor's  part;  but  the  rule  appears  to  be  no  different 
where  both  parties  act  in  equal  good  faith. 

In  a  case  ^'^  tried  before  the  writer  in  another  jurisdiction 
a  memorandum  of  sale  designated  defendant  as  purchaser 
when  in  fact  it  intended  to  be  the  vendor  as  did  also  plain- 
tiff. Both  parties  appeared  to  be  acting  in  good  faith; 
but  it  was  held  that  no  contract  resulted. 

"As  the  trial  court  well  says,"  observed  the  Supreme  Court,  'the 
minds  of  the  parties  never  met  upon  a  contract  of  sale  by  defendant 
to  plaintiff,'  or,  in  other  words,  there  was  no  mutual  consent  by  the 
parties  to  the  alleged  contract,  and,  therefore,  there  was  no  contract, 
and  the  trial  court  properly  declined  to  allow  damages  for  an  alleged 
breach."  '* 

II. 

But  it  is  urged  that  the  mistake  in  this  case  was  that 
of  defendant's  agent;  that  it  was  within  the  scope  of  his 
authority  to  accept  the  offer ;  and  that  he  did  so  and  there- 
by bound  the  defendant.  But  the  letter  of  February  19  was 
not  in  form  an  acceptance  by  the  agent;  it  was  merely  a 
statement  by  him  that  defendant  had  accepted  and  this  it 
soon  afterward  appeared  was  incorrect.  In  this  particular 
the  case  is  stronger  than  most  of  those  just  reviewed  for 
there  the  acceptance  or  offer,  as  the  case  might  be,  was 
made  as  a  rule  by  the  principal  and  his  ground  of  relief 
was  that  he  was  mistaken. 

In  the  case  before  us  the  mistake  seems,  primarily,  to 
have  been  that  of  the  cable  company  and  the  rule  in  Eng- 
land, as  well  as  the  better  doctrine  in  America,  is  that  the 
sender  cannot  be  held  liable  for  the  mistakes  of  such  a 
transmitter.     In  another  leading  English  case  --  defendant 

"  91  Fed.  Rep.,  28. 

"  178  U.  S.,  373,  44  L.  ed.,  1108. 

""  Madrigal  v.  Stevenson,  15  Philippine,  38. 

=' Citing   Civil    Code,   art.   1261;    9   Cyc.   245. 

=^Henkel  v.   Paper,  L.  R.  6  Exch.  7,  40  L.  J.    (Part  2)    15. 


S'HAI  TANNERY  CO.  V.  TRADING  CO.,  JUNE  24,  1916.    587 

wrote  plaintiffs  inquiring  upon  what  terms  they  could 
furnish  him  fifty  rifles  and  upon  receiving  their  reply 
ordered  three  rifles.  The  telegraph  operator  by  mistake 
substituted  "the"  for  "three"  and  plaintiffs  forwarded  the 
entire  fifty.  As  defendant  refused  payment  for  more  than 
three,  plaintiffs  brought  an  action  at  the  trial  of  which  the 
Judge  directed  a  nonsuit.  Chitty,  for  plaintiffs,  moved  for 
a  rule,  contending: 

"The  defendant  might  have  had  the  message  repeated,  which  would 
have  obviated  all  possibility  of  error.  The  telegraph  clerk  was  a 
general  agent,  on  the  principle  that  if  a  person  employs  an  agent 
in  the  general  course  of  the  agent's  business,  he  is  bound  by  what 
the  agent  does,  though  not  according  to  his  instructions,  inasmuch 
as  third  persons  in  such  cases  are  naturally  led  to  presume  the 
existence  of  authority."  "^ 

But  the  court  per  Kelly,  C.  B.,  said: 

"I  think  there  should  be  no  rule.  The  telegraph  authorities  were 
only  the  defendant's  agents  to  transmit  the  message  actually  given 
for   transmission." 

This  has  now  become  the  settled  English  doctrine  -^  and 
prevails  in  Scotland  -■'  as  well. 

The  best  considered  American  decisions  apply  the  same 
rule.  In  a  Tennessee  case  -''  complainants  wrote  a  message 
to  a  customer  quoting  meat  prices  at  $6.60  per  cwt.  By 
mistake  the  message  as  delivered  read  "six  thirty."  Com- 
plainants then  brought  suit  against  the  telegraph  company 
for  the  aggregate  difference  in  price,  on  the  theory  that  a 
contract  had  resulted  with  their  customer  which  bound 
them  to  deliver  at  the  lower  price.     But  the  court  said: 

"In  our  opinion  this  contention  cannot  be  maintained,  either  upon 
principle  or  authority.  The  minds  of  the  party  who  sends  a  mes- 
sage in  certain  words  and  the  party  who  receives  the  message  in 
entirely  different  words  have  never  met.  Neither  can  therefore  be 
bound  the  one  to  the  other,  unless  the  mere  fact  of  employment  of 
the  telegraph  company,  as  the  instrument  of  communication,  makes 

''Citing  Chitty  on  Contracts   (7th  ed.),  197. 

'"  Playfor  v.  Telegraph  Co.,  Allen,  Tel.  Cases,  437. 

"'Verdin  v.  Robertson,  10  Ct.  Sess.,  Cas.   (3d  Ser.),  35. 

-'  Pepper  v.  Western  Union  Tel.  Co.,  87  Tenn.,  554,  11  S.  W.,  783. 


588  I   EXTRATERRITORIAL   CASES. 

the  latter  the  agent  of  the  sender.     Upon  what  principle  can  it  be 
said  such  an  agency  arises?" 

It  then  proceeds  to  show  why  the  theory  of  such  agency 
is  unsound. 

This  was  followed  in  a  well  reasoned  Mississippi  case  -' 
where  a  message  offering  to  sell  cotton  at  8i-  cents  per 
pound  was  delivered  reading  8-5/16,  and  no  contract  was 
found  tho  the  offer  was  accepted. 

The  same  conclusion  was  reached  in  a  California  case  -* 
where  a  message  quoting  oranges  at  $2.60  per  box  was 
changed  in  transmission  so  as  to  read  $1.60  and  an  accept- 
ance by  the  recipient  was  held  not  to  create  a  contract. 

We  have,  indeed,  found  two  American  decisions  -°  dif- 
fering from  those  just  reviewed.  But  they  are  not  only 
in  the  minority;  their  reasoning  seems  to  us  inconsistent 
with  the  fundamental  requirement  of  a  meeting  of  minds. 
Besides  they  are  chiefly  concerned  with  the  liability  of  tel- 
egraph companies  which  is  not  involved  here.  But  in  this 
country,  where  so  much  business  is  transacted  by  coded 
cablegrams,  it  would  seem  especially  dangerous  to  adopt 
a  rule  which  would  bind  the  sender  for  any  mistakes  which 
the  cable  company  might  make. 

It  may  be  urged  that  defendant's  agents  recognized  the 
existence  of  a  contract  even  after  the  mistake  was  reported, 
but  we  think  the  most  tha,t  can  be  claimed  from  the  cor- 
respondence is  a  display  of  anxiety  to  placate  plaintiff  and 
save  it  from  loss.  They  express  a  willingness  to  procure 
quebracho  at  the  lowest  available  price  but  we  are  unable 
to  find  where  they  undertook,   or  considered  themselves 


"  Shingleur  v.  Western  Union  Tel.  Co.,  72  Miss.  1030,  18  So.  425. 

=' Germain  Fruit  Co.  v.  Western  Union  Tel.  Co.,  137  Cal.  598,  70 
Pac,  658. 

-"Western  Union  Telegraph  Co.  v.  Shotter,  71  Ga.  760;  Ayer  v. 
Western  Union  Telegraph  Co.,  79  Me.,  493,  10  Atl.  495.  The  former 
is  not  only  criticised  in  Pepper  v.  Western  Union  Telegraph  Co., 
Tenn.  554,  11  S.  W.  783,  Shingleur  v.  Western  Union  Telegraph 
Co.  72  Miss.  1030,  18  So.  425  and  by  Gray  in  his  "Communication 
by  Telegraph;"  it  must  be  read  in  the  light  of  Singer  v.  Grand 
Rapids  Match  Co.,  117  Ga.  86,  43  S.  E.  755,  which  appears  incon- 
sistent with  its  doctrine. 


RAIGORODETZKAIA  V.  ARNOLD,  JULY  2,   1916.  589 

bound  to  undertake,  to  supply  it  at  $135  per  ton.  In  its 
first  letter  on  the  subject  (March  11,  Ex.  B)  they  quoted 
"an  unfirm  offer"  of  $160  per  ton  but  nothing  lower. 

It  being  obvious  that  the  minds  of  the  parties  never  met 
on  the  alleged  sale,  and  there  being  no  evidence  that  plain- 
tiff's position  was  changed  to  its  prejudice  after  notice  that 
its  offer  had  been  accepted  and  before  said  notice  was 
corrected,  we  have  no  alternative,  under  the  decided  weight 
of  authority,  but  to  find  for  defendant. 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
take  nothing  by  its  complaint  and  that  defendant  recover 
its  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Cecile  RAIGORODETZKAIA,  Plaintiff  and  Appellee,  v.  H.  H. 
Arnold,  Defendant  and  Appellant. 

[Cause  No.   512;   filed  July   2,   1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  HIGHWAYS:    AUTOMOBILES:   PEDESTRIANS.     The  rights  of  motorists 

and  pedestrians  on  public  streets  are  equal  and  each  must  keep 
a  lookout  for  the  other. 

2.  Id.  :  Id.  :  Id.     But  the  pedestrian  is  not  required  to  observe  the  rule 

of  "look  and  listen"  as  if  he  were  on  a  railroad  right  of  way. 

3.  Id. :  Id.:   Signals.     And  he  has  a  right  to  expect  that  a  motorist 

will  obey  a  policeman's  signal  to  stop. 

4.  Id.:  Id.:  Id.:  Care.     The  motorist  must  employ  special  care  at  cross- 

ings and  corners. 

5.  Id.  :   Id.  :   Id.  :   Damages.     In  the  absence  of  malice  or  gi*oss  negli- 

gence only  actual  or  compensatory  damages  will  be  allowed. 

APPEAL  from  the  Consular  Court  for  the  district  of 
Shanghai. 

Messrs.  Fleming  &  Da  vies,  by  Mr.  Da  vies,  for  appellant. 
Joseph  W.  Rice,  Esq.,  for  appellee. 

LOBINGIER,  J.: 

Appellant,  who  was  defendant  in  the  court  below,  brings 
this  appeal  from  a  judgment  there  rendered  against  him 


590  I  EXTRATERRITORIAL  CASES. 

for  damages  resulting  from  injuries  to  appellee,  a  Russian 
subject,  in  consequence  of  a  collision  with  defendant's  auto- 
mobile at  the  junction  of  Minghong  Road  and  Broadway 
in  Hongkew  (Shanghai).  Appellee  was  in  the  act  of  cross- 
ing, and  the  automobile  was  emerging  from,  the  former 
street  into  the  latter  along  which  appellee  was  passing. 
The  first  assignment  in  the  petition  filed  in  this  court  is 

"Error  in  finding  that  the  Chinese  constable  on  duty  at  the  corner 
of  Minghong  Road  and  Broadway,  Shanghai,  at  the  time  of  the  ac- 
cident, signalled  the  motor  car  driven  by  defendant  to  stop  as  it 
approached  said  corner". 

The  finding  here  assailed  is  based  upon  the  testimony 
of  the  constable  himself  which  cannot  be  impeached  by 
appellant  because  the  constable  was  his  witness.^  The 
latter  says  (p.  23)  "I  used  my  arm  to  stop  the  car." 

It  is  true  that  another  portion  of  his  testimony  (which, 
of  course,  was  given  in  Chinese)  was  translated  by  the 
interpreter  (who  was  not  an  official  one)  : 

"I  held  my  arm  up  according  to  police  regulations.  I  signalled  to 
the  car  so  that  the  car  must  go  slowly."      (p.  20.) 

But  the  trial  judge,  who  also  understands  Chinese,  adds 
with  his  initials  "man-man  should  be  to  stop."  And  later 
where  the  witness  is  made  to  say  "I  held  up  my  arm  simply 
to  signal  to  the  car  so  that  the  car  must  go  sloiuly" 
(p.  21)  the  trial  judge  again  adds  in  parenthesis  before 
his  initials   ("Stop"). 

From  this  we  conclude  that  the  word  actually  used  by 
the  witness  was  "man-man"  which  is  the  expression  gen- 
erally used  in  Shanghai  when  ordering  chauffeurs  and 
mafus  to  stop. 

Moreover  the  constable  further  testifies  (p.  20)  that  he 
did  not  "signal  the  car  to  come  thru"  and  no  one  claims 
that  he  did.  But  this  testimony  is  inconsistent  with  the 
idea  that  he  merely  signalled  appellant  to  reduce  his  speed 
and  allowed  him  to  continue. 

It  is  also  true  that  the  police  report  of  the  accident 
(Ex.  2)  fails  to  mention  the  signal.  But  in  the  first  place 
that  document  is  incompetent,-  being  the  statement  of  a 


'  Cyc,  XL,  2559.  '  Wigmore,  Ev.,  Vol.  II,  43. 


RAIGORODETZKAIA  V.  ARNOLD,  JULY  2,  1916.  591 

third  person  (other  than  the  constable)  not  sworn  nor  sub- 
ject to  cross-examination;  and,  in  the  second  place,  it  does 
not  purport  to  be  a  complete  statement  of  all  that  occurred. 
Besides,  other  witnesses,  including  appellant  himself  (pp. 
14-18),  say  that  the  policeman  did  signal  in  the  manner 
described  by  him  and  the  only  question  is  what  he  meant 
by  the  signal.  We  think  his  testimony  shows  that  he 
meant  "stop"  and  the  first  assignment  of  error  must,  there- 
fore, be  overruled. 

The  second  assignment  is  "error  in  finding  that  Ming- 
hong  Road  is  unfrequented."  It  may  be  that  the  record 
contains  no  testimony  to  that  effect  but  the  doctrine  of 
judicial  notice  might  supply  the  lack  of  it.  In  any  event 
the  finding  is  merely  incidental  and  not  essential  to  the 
conclusion  reached. 

The  assignment  most  urged  in  argument  was  the  third: 

"Error  in  finding  that  defendant  was  guilty  of  negligence  in  fail- 
ing to  obey  the  signal  of  the  Chinese  constable  to  stop." 

This  must  be  considered  in  connection  with  the  first  as- 
signment just  reviewed.  No  one — -not  even  appellant — 
claims  that  the  car  did  stop  at  any  time  before  the  collision. 
And  this,  we  think,  is  the  crux  of  the  case.  For  the  mo- 
torist must  keep  a  proper  lookout  and  be  ready  to  stop  his 
car  to  avoid  an  accident.' 

Moreover  in  Shanghai  policemen  are  stationed  at  the 
principal  street  intersections  for  the  primary  purpose  of 
warning  vehicle  drivers  of  possible  danger.  To  hold  that 
one  may  disregard  such  warning  and  still  be  free  from 
negligence  would  be  flying  in  the  face  of  precedent. 

The  fourth  assignment  is 

"Error  in  finding  that  defendant  was  guilty  of  negligence  in  fail- 
ing to  blow  his  horn  immediately  prior  to  turning  the  corner  at 
Minghong    Road    and    Broadway." 

No  one  claims  that  the  horn  was  so  sounded.  Appellant 
himself  says  only  that  he  sounded  it  "until  I  was  within 
fifty  feet  of  Broadway  and  until  the  signal  of  the  police- 

'Kessler  v.  Washburn,  157  111.  App.,  532;  Liebrecht  v.  Crandall, 
110  Minn.,  454,  126  N.  W.,  69;  Grier  v.  Samuel,  27  Del.  106,  86  Atl., 
209. 


592  I   EXTRATERRITORIAL  CASES. 

man  was  given"  (p.  14.  Cf.  pp.  15,  17).  A  motorist  is 
required  to  be  especially  careful  in  turning  corners  *  and 
we  cannot  say  that  the  trial  court's  finding  on  this  point 
is  contrary  to  law.  But  if  it  were  otherwise  this  would 
not  necessarily  vitiate  the  judgment  which  would  have  to 
be  sustained  if  there  were  no  other  negligence  than  that 
of  disregarding  the  signal. 
The  fifth  assignment  is 

"Error  in  finding  that  plaintiff  was  not  guilty  of  contributory- 
negligence   so   as   to   preclude   her   from   recovering   damages." 

This  contention  is  based  mainly  upon  appellee's  testi- 
mony (pp.  8,  9)  that  when  she  came  to  the  corner  she 
"looked  around  and  did  not  hear  any  sound"  nor  "see  a 
motor  car"  (the  Chinese  tailor  also  testified  (p.  12)  that 
he  heard  no  horn)  ;  and  upon  the  policeman's  testimony 
(pp.  21,  22)  that  when  he  first  saw  appellee  "she  was 
walking  down  from  the  foot  path  to  the  street  *  *  * 
several  steps  from  him,"  and  "was  looking  up  in  the  air" 
and  that  he  "told  her  to  cross  the  street  quickly  but  that 
she  did  not  pay  any  attention". 

We  are  cited  to  some  nisi  prius  decisions  ''  to  the  eff'ect 
that  a  pedestrian  who  looks  but  fails  to  see  an  automobile 
which  collides  with  him  immediately  afterward  is  guilty 
of  contributory  negligence.  The  reports  of  these  cases  are 
not  all  accessible  but  it  is  evident  that  their  facts  do  not 
parallel  the  situation  here.  For  the  plaintiff  had  a  right 
to  rely  upon  the  policeman  (who  told  her,  as  we  have 
seen,  to  go  ahead)  and  to  expect  that  defendant's  and  all 
other  approaching  vehicles  would  obey  the  signal  to  stop." 

Nor  is  it  the  duty  of  a  pedestrian  along  a  public  street 

*  Buscher  v.  N.  Y.  Transp.  Co.,  106  App.  Div.  493,  94  N.  Y.  Suppl. 
798.   Cf.  28  Cyc.  28,  29. 

=  Larner  v.  N.  Y.  Transp.  Co.,  133  N.  Y.  Suppl.  743;  O'Reilly  v. 
Davis,  136  App.  Div.  386,  120  N.  Y.  Suppl.  883.  Hannigan  v. 
Wright,  5  Pennewell  (Del.)  537,  63  Atl.  234,  was  merely  a  charge 
to  the  jury  which  on  the  whole  is  quite  consistent  with  the  conclu- 
sions reached  here. 

"Hayward  v.  N.  J.  St.  Ry.  Co.,  N.  J.,  65  Atl.  737,  8  L.  R.  A.  (N. 
S.)  1062;  Kathmeyer  v.  Mehl,  N.  J.,  60  Atl.  40;  Benoit  v.  Miller,  (R. 
I.),  67  Atl.  87;  Marsh  v.  Boyden,  33  R.  I.  519,  82  Atl.  393. 


RAIGORODETZKAIA  V.  ARNOLD,  JULY  2,   1916.  593 

to  observe  the  rule  of  "look  and  listen"  as  if  he  were  on  a 
railroad's  right  of  wayJ 

"There  is  no  imperative  rule  of  law,"  says  the  Massachusetts 
court,'  "requiring  a  pedestrian,  when  lawfully  using  the  public  ways, 
to  be  continuously  looking  or  listening  to  ascertain  if  auto  cars  are 
approaching,  under  the  penalty  that,  upon  failing  to  do  so,  if  he  is 
injured,  his  negligence  must  be  conclusively  presumed." 

The  rights  of  pedestrians  on  public  streets  are  equal 
to  those  of  motorists  ^  and  the  latter  must  be  on 
the  lookout  for  the  former.  In  this  case  while  defend- 
ant says  that  he  did  not  see  plaintiff  till  just  before  the 
collision  the  policeman  and  the  Chinese  tailor  (p.  12)  had 
seen  her  while  she  was  crossing  the  street.  Plaintiff's 
credibility  was  questioned  in  argument  but  the  main  facta 
above  reviewed  do  not  depend  on  her  testimony;  they  are 
established  by  other  witnesses,  and  chiefly  those  called  by 
defendant. 

In  the  Federal  Courts  the  burden  rests  upon  a  defendant 
to  prove  contributory  negligence  on  the  part  of  plaintiff  ^° 
and  we  do  not  think  that  burden  has  been  met  ^^  in  the 
case  at  bar. 

'Alabama.     Barbour  v.  Shebor,  107  Ala.  304,  58  So.,  276. 

Kansas.     Williams  v.  Benson,  87  Kan.,  421,  124  Pac,  531. 

Louisiana.  Burvant  v.  Wolfe,  126  La.,  787,  52  So.,  1025,  29  L.  R. 
A.   (N.  S.),  677. 

Massachusetts.  Lynch  v.  Fisk  Rubber  Co.,  209  Mass.  16,  95  N.  E., 
400. 

Michigan.  Gerhard  v.  Ford  Motor  Co.,  155  Mich.  618,  119  N.  W., 
904,  20  L.  R.  A.   (N.  S.),  233. 

Missouri.  Bongner  v.  Ziegenheim,  165  Mo.  App.,  328,  147  S.  W. 
182. 

Washington.     Lampe  v.  Jacobsen,  46  Wash.  533,  90  Pac,  654. 

Minor  v.  Stevens,  65  Wash.,  423,  118  Pac,  313,  42  L.  R.  A.  (N.  S.), 
1178,  cited  by  appellant  went  off  on  a  question  of  practice  and  there 
is  besides  a  strong  dissenting  opinion  by  Dunbar,  C.  J. 

West  Virginia.  Deputy  v.  Kimmell,  W.  Va.,  89  S.  E.,  919,  51  L. 
R.  A.   (N.  S.),  989. 

'Hennessey  v.  Taylor,  189  Mass.  583,  3  L.  R.  A.  (N.  S.),  345,  76 
N.  E.  224. 

°  Apperson  v.  Lazro,  Ind.  App.,  88  N.  E.,  99;  Hannigan  v.  Wright. 
5   Pennewell    (Del.),  537,  63  Atl.,  234. 

'°  Star  Garage  Co.,  Ltd.,  v.  Honigsberg  &  Co.,  ante,  p.  556. 

"Smith  v.  Coon,  89  Neb.  1911,  776,  132  N.  W.,  555. 

14008  O.  W. 38 


594  I  EXTRATERRITORIAL  CASES. 

The  sixth  assignment  is 

"Error  in  finding  that  defendant's  negligence  in  driving  the  motor 
car  in  question  was  the  proximate  cause  of  plaintiff's  injury  and  dam- 
ages sustained." 

The  term  "proximate  cause"  opens  up  an  extensive  sub- 
ject in  which  there  is  much  conflict  and  uncertainty  but 
the  doctrine  has  been  declared  inapplicable  where  the  neg- 
ligence complained  of  "was  operating  at  the  instant  of  the 
accident."  "  Here  it  is  certain  that  appellant's  disregard 
of  the  signal  was  so  operating.  It  is  obvious  that  if  ap- 
pellant had  stopped  his  car  when  said  signal  was  given 
no  collision  would  have  occurred,  and  we  have  been  cited 
to  no  authority  holding  that  in  such  case  the  negligence 
is  not  the  proximate  cause. ^' 

The  seventh  and  last  assignment  reads 

"Error  in  not  entering  judgment  in  favor  of  defendant  and  dis- 
missing the  petition  of  plaintiff." 

But  this  is  merely  a  summary  of  the  preceding  assign- 
ments. Unless  they  are  well  taken  a  judgment  had  to  be 
rendered  for  appellee. 

After  a  search  of  the  record  on  that  point,  however,  we 
are  forced  to  the  conclusion  that  the  amount  awarded  ap- 
pellee ($250)  is  more  than  the  evidence  will  justify.  There 
is  no  proof  of  permanent  injury.  Appellee's  physician 
(Dr.  Street)  states  (p.  3)  that  she  was  in  the  hospital 
three  or  four  days  but  not  that  she  was  disabled  from 
work  for  any  considerable  time  thereafter.  Her  hospital 
bill  was  $2  per  day  and  her  physician's  bill  Tls.  15. 

She  testifies  (p.  6)  that  the  damage  to  her  clothing  and 
glasses  would  be  about  $100;  but  this  is  evidently  a  mere 
guess  as  no  cost  prices  are  given.  Her  claim  of  earning 
as  a  dressmaker  $200  and  $300  per  week  cannot  be  ac- 
cepted in  view  of  her  Consul  General's  certificate,  prepared 
about  three  weeks  after  the  accident,  with  a  view  to  obtain- 
ing a  remission  of  court  fees,  that  she  was  without  prop- 
erty and  that  an  execution  against  her  had  been  returned 
unsatisfied. 


"  Huber  v.  Jackson  &  Sharp  Co.,  1  Marv.   (Del.)    374,  41  Atl.  92. 
"See  Cyc.  XXIX,  489  et  seq. 


IN  RE  BASSITY'S  ESTATE,   JULY   3,   1916.  595 

Nor  is  this  a  case  for  punitive  or  exemplary  damages 
which  are  allowed  only  in  case  of  gross  negligence  or 
malice.^^  There  is  no  suggestion  of  malice  on  defendant's 
part  and  his  negligence  may  after  all  have  been  due  to 
a  misunderstanding  of  the  signal.  The  most  that  can  be 
awarded  here  are  actual  or  compensatory  damages,  i.  e., 
those  which  will  repair  the  injury.  "The  measure  of 
damages  is  governed,  not  by  a  fanciful  price,  but  by  the 
actual  loss  sustained."  ^^ 

Under  this  rule  we  feel  that  the  judgment  of  the  Con- 
sular Court  should  be  reduced  by  $100  and  as  so  modified 
it  is  affirmed.  Because  of  such  necessary  modification  the 
costs  in  this  court  must  be  adjudged  against  appellee. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Matthew  A.  Bassity's  Estate. 

[Cause  No.  420;  filed  July  3,  1916.] 

SYLLABUS. 
(By  the  Court.) 

1.  ADMINISTRATION  OF  ESTATES:   CLAIMS:  VERIFICATION.     Under  the 

law  in  force  in  this  extraterritorial  jurisdiction  claims  against 
a  decedent's  estate  should  be  verified  by  the  claimant's  oath. 

2.  Id.  :   Id.  :   Proof.     A  claim  rejected  by  the  personal  representative 

cannot  be  allowed  by  the  court  without  other  proof  than  claim- 
ant's testimony. 

3.  Id.  :   Id.  :    Id.     In  fact  such  testimony  is  generally  inadmissible. 

4.  Id.  :    Distribution.     Where  deceased  left  only  a  widow  and  three 

minor  children  each  of  the  latter  is  entitled  to  two  ninths  of  the 
personalty  but  it  must  be  held  for  them  in  trust  by  a  duly 
appointed  guardian. 

F.  E.  Hinckley,  Esq.,  for  the  administrators. 
Messrs.  Hanson,  McNeill,  Jones  &  Wright,  by  Mr.  Wright, 
for  claimant  Harvie. 

"  Cyc.  Xlll,  112. 

"Id.  136.  Cf. 

Iowa.  Lord  v.  Wood,  120  la.  303,  94  N.  W.  842;  Wimer  v.  All- 
baugh,  78  la.  79,  42  N.  W.  587,  16  Am.  St.  Rep.  422. 

New  York.     Reid  v.  Terwilliger,  116  N.  Y.  530  22  N.  E.  1091. 

Texas.  International  etc.  R.  Co.,  v.  Nicholson,  61  Tex.  550;  Field 
v.  Munster,  11  Tex.  Civ.  App.  341  32  S.  W.  417. 


596  I  EXTRATERRITORIAL  CASES. 

LOBINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  final  account 
of  the  co-administrators,  the  approval  of  which  is  contested 
by  William  Harvie,  Esq.,  because  of  their  failure  to  allow 
a  claim  of  his.  Regarding  this  the  administrators  in  a 
previous  report  dated  Jan.  14,  1916,  state  that 

"they  have  duly  requested  William  Harvie  thru  his  counsel  to 
produce  evidence  in  support  of  his  claim  against  the  Estate,  and 
they  have  been  advised  by  their  Counsel  that  what  has  been  produced 
as  evidence  is  not  of  a  nature,  unsupported  by  other  evidence,  to  re- 
quire them  to  recognize  the  claim  as  valid  in  any  part  thereof." 

The  first  question  is  whether  the  court  should  overrule 
the  action  of  the  administrators  in  this  regard.  The  Act 
of  Congress  of  June  6,  1900,  provides: 

"Every  claim  presented  to  the  executor  or  administrator  shall  be 
verified  by  the  affidavit  of  the  claimant  or  some  one  on  his  behalf 
who  has  personal  knowledge  of  the  facts,  to  the  effect  that  the  amount 
claimed  is  justly  due,  that  no  payments  have  been  made  thereon,  ex- 
cept as  stated,  and  that  there  is  no  just  counterclaim  to  the  same, 
to  the  knowledge  of  the  affiant."^ 

This  provision,  like  many  others  in  the  same  chapter, 
appears  to  have  been  taken  from  the  statutes  of  Oregon 
and  the  Supreme  Court  of  that  state  has  treated  it  as 
mandatory  even  to  the  extent  of  rejecting  a  claim  which 
was  verified  not  by  the  claimant  but  by  his  agent. - 

The  parent  statute  appears  to  have  been  that  of  New 
York  which  was  construed  in  an  early  case  '■'  as  follows : 

"The  object  of  requiring  the  affidavit  of  the  creditor  in  such  cases 
is  not  to  prove  the  existence  of  the  debt,  as  it  is  not  evidence  for  that 
purpose.  But  it  is  to  prevent  the  exhibition  of  fictitious  claims  against 
the  estate  of  the  decedent,  which  have  been  discharged  by  him 
in  his  lifetime,  and  also  to  prevent  the  allowance  of  claims  against 
which  there  existed  a  legal  offset,  knovni  only  to  the  party  present- 
ing such  claim,  and  which  those  who  are  interested  in  the  estate  of 
the  decedent  may  be  unable  to  establish  by  legal  proof." 

The  claim  before  us  was  not  only  never  verified  by  the 
claimant  but  it  was  not  even  signed  by  him.     In  fact  its 


'  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  II,  sec.  822. 

-  Zachary  v.  Chambeers,  1  Or.  .321. 

'Williams  v.  Purdy,  6  Paige  Ch.    (N.  Y.)    166. 


IN  RE  BASSITY'S  ESTATE,  JULY  3,  1916.       597 

presentation  has  been  most  informal  being  entirely  by  let- 
ters to  the  administrators  or  their  attorney,  signed  only 
by  the  claimant's  lawyers,  and  describing  the  claim  only 
in  the  most  general  terms.  Surely  this  was  not  a  com- 
pliance with  the  statute. 

It  is  true  that  claims  without  such  verification  have 
been  allowed  by  this  court.  But  that  was  when  they  were 
uncontested.  Where,  as  here,  the  question  is  raised  there 
is  nothing  to  do  but  apply  the  statute,  especially  since 
the  result  affects  vitally  the  patrimony,  none  too  large  at 
best,  of  a  widow  and  orphans. 

II. 

If,  however,  the  claim  had  been  presented  in  proper  form 
the  question  would  still  remain  whether  this  court  should 
set  aside  the  administrators'  finding  that  the  claim  had 
not  been  sufficiently  proved.  The  evidence  offered  by  the 
claimant  consists  of  his  own  testimony,  four  checks  pay- 
able to  the  deceased,  the  "stub"  or  counterfoil  of  a  check 
book  with  an  entry  in  the  claimant's  handwriting,  a  car- 
bon copy  of  a  letter  (Ex.  M)  purporting  to  have  been 
written  by  him,  and  a  small  memorandum  (Ex.  L)  contain- 
ing some  figures.  There  is  also  some  slight  corroborating 
testimony  by  Messrs.  Pickering,  MacGregor  and  Parker. 
Some  letters  from  other  parties  giving  their  impressions 
on  the  subject  were  offered  but  of  course  are  not  evidence, 
the  writer  not  being  under  oath  nor  subject  to  cross^ 
examination. 

The  checks  indicate  payments  to  the  deceased  aggregating 
Tls.  4,943.67  altho  it  was  unfortunately  not  shown  that  the 
indorsements  were  in  the  handwriting  of  the  deceased. 
But  as  to  the  purpose  of  the  payments  and  whether  they 
were  repaid  or  not  we  are  practically  restricted  to  claim- 
ant's testimony  which  is  that  they  were  to  enable  the 
deceased  to  purchase  certain  shares  the  profits  of  which 
were  to  be  divided  between  them.  The  carbon  copy  of 
the  letter  (Ex.  M),  addressed  to  the  Shanghai  Life  In- 
surance Company,  mentions  two  blocks  of  shares  (the 
ones  chiefly  in   dispute)    "which  you  hold  for  me  under 


598  I  EXTRATERRITORIAL  CASES. 

mortgage"   and   requests  that   his  wife's   instructions   be 
followed  "with  regard  to  disposal  of  same." 

There  is,  indeed,  a  postscript,  addressed,  apparently,  to 
his  wife  and  reading  "Please  take  any  instructions  given 
you  by  Mr.  Harvie  in  connection  with  above  Shares  and 
Debentures".  Mrs.  Bassity's  explanation  of  this  is  as 
follows : 

"My  husband  said  that  I  was  not  in  good  enough  health  to  attend 
to  them,  and  that  Mr.  Harvie  would  watch  the  share  market  for  the 
family  *  *  *  and  simply  told  me  to  pay  the  money  into  the  bank 
to  my  account." 

This  is  certainly  not  consistent  with  the  claim  that  the 
shares  belonged  to  some  one  else  than  the  deceased.  Mr. 
Pickering  says  that  he  heard  the  deceased  and  claimant 
talk  about  shares,  that  the  latter  financed  a  coal  deal  for 
the  former  and  that  Mrs.  Bassity  stated  in  effect  that 
she  would  recognize  the  claim.  The  latter  states  that 
what  she  told  him  was  that  she  would  prefer  to  adjust 
the  matter  without  litigation. 

Mr.  Parker  mentioned  a  letter  which  he  received  from 
the  deceased  regarding  a  mortgage  of  certain  shares  to 
the  Shanghai  Life  Insurance  Company  in  which  he  thought 
claimant's  name  was  mentioned  as  having  a  profit  sharing 
arrangement  with  deceased.  But  on  submitting  to  him 
this  same  Exhibit  "M"  he  recognized  it  as  the  only  letter 
received  by  him  and  it  says  nothing  about  such  an  ar- 
rangement. 

It  is  clear,  therefore,  that  if  the  administrators  are  to 
be  overruled  and  the  claim  allowed,  it  must  be  upon  the 
testimony  of  the  claimant.  Without  that  testimony  the 
checks  mean  little  and  the  memorandum  (Ex.  L)  is  in  no 
way  connected  with  deceased.  For  here  is  no  contract, — 
no  memorandum,  even,  signed  by  the  deceased  or  show- 
ing that  he  owed  claimant  anything. 

But  in  1900  Congress  declared  that 

"No  claim  which  shall  have  been  rejected  by  the  executor  or  ad- 
ministrator, as  aforesaid,  shall  be  allowed  by  any  court,  judge,  referee, 
or  jury,  except  upon  some  competent  or  satisfactory  evidence  other 
than  the  testimony  of  the  claimant."  * 


'  31  U.  S.  Stats,  at  Large.  Sess.  I,  Ch.  786,  Tit.  II,  sec.  823. 


IN  RE  BASSITY'S  ESTATE,   JULY   3,   1916.  599 

Again  in  1901  it  was  provided  that,  with  certain  excep- 
tions not  found  in  this  case, 

"If  one  of  the  original  parties  to  a  transaction  or  contract  has, 
since  the  date  thereof,  died  or  become  insane  or  otherwise  inca- 
pable of  testifying  in  relation  thereto,  the  other  partly  thereto  shall 
not  be  allowed  to  testify  as  to  any  transaction  with  or  declaration 
or  admission  of  the  said  deceased  or  otherwise  incapable  party  in 
any  action  between  said  other  party  or  any  person  claiming  under 
him  and  the  executors,  administrators,  trustees,  heirs,  devisees,  as- 
sig-nees,  committee,  or  other  person  legally  representing  the  deceased 
or  otherwise  incapable  party  unless,"  etc." 

In  view  of  these  positive  enactments  we  have  no  alter- 
native but  to  exclude  claimant's  testimony  and,  as  it  is 
not,  and  in  our  judgment  could  not  successfully  be,  argued 
that  the  remaining  evidence  is  sufficient,  we  find  no  ground 
for  disturbing  the  action  of  the  administrators  in  refusing 
to  allow  the  claim. 

III. 

It  appears  from  the  petition  for  Letters  of  Administra- 
tion that  deceased  died  intestate  and  left,  besides  his 
widow,  as  his  only  relatives,  three  children,  the  eldest  born 
in  1909. 

In  such  a  case  each  of  the  children  is  entitled  to  two- 
ninths  of  the  estate  besides  the  widow's  one-third.*^  But 
as  the  children  are  minors  their  shares  cannot  be  paid 
to  them  directly  but  must  be  held  in  trust  for  them  by  a 
guardian. 

The  final  account  shows  that  the  administrators  have 
already  advanced  the  widow,  without  authority  from  the 

'  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  1064.  Cf.  U.  S. 
Rev.  Stats.,  sec.  858. 

"In  almost  every  jurisdiction  in  the  United  States,  by  statutes 
enacted  in  connection  with  or  shortly  after  the  statute  removing  the 
general  disqualification  by  interest,  an  exception  was  carved  out  of 
the  old  disqualification.  *  *  *  fhe  scope  of  this  modern  rule 
excludes  the  testimony  of  the  survivor  of  a  transaction  with  a  de- 
cedent, when  offered  against  the  latter 's  estate."  I  Wigmore  on  Ev., 
sec.  578. 

*Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  Ch. 
854,  sec.  375.  See  In  re  Thacher's  Will,  ante,  p.  524;  In  re  Noyes' 
Estate,  ante,  p.  538. 


600  I  EXTRATERRITORIAL  CASES. 

Court,  the  sum  of  Tls.  806.84.  This  was  irregular  but 
will  be  approved  on  condition  that  the  same  amount  be  de- 
ducted from  the  widow's  portion  of  one-third  now  about 
to  be  assigned  to  her. 

It  is  therefore  considered  and  adjudged: 

1.  That  all  claims  against  the  said  estate,  not  already  paid,  be 
and  the  same  are  hereby  barred. 

2.  That  the  final  account  of  the  administrators  be  approved,  sub- 
ject to  the  condition  named  above. 

3.  That  the  said  administrators  now  proceed  to  distribute  the 
money  and  personal  property  belonging  to  said  estate  by  delivering 
one-third  thereof  to  the  widow,  less  the  sum  of  Tls.  806.84,  as  above 
provided,  and  the  balance  to  the  guardian  of  said  minor  children,  to 
be  appointed  by  this  Court  upon  a  proper  showing  and  application 
for  that  purpose;  said  guardian  to  hold  the  same  in  trust  for  s^id 
minor  children  in  equal  shares. 

4.  That  upon  depositing  with  the  clerk  of  this  court  proper  re- 
ceipts evidencing  such  distribution  the  administrators  shall  stand 
discharged. 


Leonard  Everett,  Plaintiff,  v.  Swayne  &  Hoyt,  Incor- 
porated, Defendant. 
[Cause  No.  507.] 
I.  ON  DEMURRER  TO  THE  JURISDICTION. 
[Filed  July  17,  1916.] 

SYLLABUS. 

(By  the  Court.) 

COURTS:  Jurisdiction  of  American  Courts  in  China  over  the  subject 
matter  is  not  dependent  upon  the  residence  of  the  parties. 

Messrs.  Jernigan  &  Fessenden,  by  Mr.  Fessenden,  for 
the  demurrer. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  contra. 

LOBINGIER,  J.: 

The  defendant  demurs  to  a  petition  alleging  that  it  is 
a  corporation  organized  under  the  laws  of  California  with 
its  principal  place  of  business  at  San  Francisco;  that  Jar- 
dine,  Matheson  &  Co.,  Ltd.,  a  British  corporation,  were 
and  are  its  agents  at  Shanghai ;  and  that  in  May,  last,  the 
defendant,  thru  said  agents,  wrongfully  refused  to  permit 
plaintiff    to    send    freight    on    one    of    its    vessels    unless 


EVERETT  V.  SWAYNE  &  HOYT,  JULY   17,   1916.        601 

such  freight  "should  be  passed  by  the  British  Consul  at 
Shanghai." 

The  demurrer  is  based 

"on  the  ground  that  it  appears  upon  the  face  of  the  petition  that 
the  Court  has  not  jurisdiction  of  the  person  of  the  defendant  in  that 
it  appears  from  said  petition  that  defendant  is  a  corporation  or- 
ganized and  existing  under  the  laws  of  the  State  of  California, 
United  States  of  America,  and  having  its  principal  offices  and  place 
of  business  at  San  Francisco,  in  said  State  of  California,  and  it 
does  not  appear  from  said  petition  that  said  defendant  has  any 
office,  branch,  place  of  business  or  property  in  China,  or  any  official, 
agent  or  representative  residing  or  being  in  China  over  whom  this 
Court  has  jurisdiction." 

On  first  reading  the  above  it  appeared  that  the  defendant 
sought  to  raise  a  question  of  service;  but  defendant's 
counsel  states  that  "the  objection  to  the  jurisdiction  is 
not  based  upon  the  ground  of  deficient  or  irregular  service 
of  process." 

Moreover,  according  to  most  of  the  authorities,^  at  least, 
the  demurrer  itself  would  constitute  a  general  appearance, 
waiving  any  question  of  service. 

Counsel  for  defendant,  however,  states  the  real  point 
sought  to  be  reached  by  the  demurrer  as  follows : 

"A  contract  of  agency  was  made  between  Swayne  &  Hoyt  of  San 
Francisco  and  Jardine,  Matheson  &  Co.  of  Shanghai  whereby  the 
latter  acted  as  agent  for  the  former  in  loading  and  despatching  the 
steamship  'Yucatan.'  The  contract  was  made,  and  to  be  performed, 
at  Shanghai.  It  was  therefore  a  contract  made  by  an  American 
company  domiciled  in  California  with  a  British  company  which  to 
all  intents  and  purposes  of  this  action,  are  located  in  British  ter- 
ritory and  who  performed  the  contract  in  what,  in  so  far  as  they 
are  concerned,  is  British  territory.  Both  the  place  of  making  and 
the  place  of  performance  of  the  contract  are  for  the  purposes  of 
this  action  British  territory.  It  is  therefore  submitted  that  the 
rights  of  the  parties  growing  out  of  this  agency  contract  should 
be  construed  and  governed  by  English  law.  For  many  years  an 
exception  to  the  general  rules  of  law  governing  the  relation  of 
principal  and  agent  has  always  been  recognized  in  English  law  in 
the  case  of  an   agent   acting  for   a   foreign   principal. 

"It  has  long  been  established  in  England  that  an  agent  cannot 
pledge  his  foreign  constituent's  credit  in  the  absence  of  express  author- 
ity to  that  effect." 

'Encyc.  PI.  &  Pr.,  II,  635. 


^02  I  EXTRATERRITORIAL  CASES. 

The  case  -  cited  in  support  of  this  contention  does  not 
seem  to  us  to  go  to  the  extent  claimed  even  where  the 
action  is  founded  upon  a  contract;  for  it  merely  holds  that 
a  vendor  who  gives  credit  to  an  agent  believing  him  to  be 
the  principal,  and  to  whom  the  real  principal  has  paid, 
cannot,  after  discovering  the  latter,  hold  him  liable.  It 
appears  to  be  very  far  removed  from  anything  here  and 
while  some  language  used  in  the  opinion  might  have  a  bear- 
ing on  the  present  situation  it  could  hardly  be  accepted 
as  controlling. 

For  the  question  here  is  not  the  interpretation  or  enforce- 
ment of  a  contract  but  the  determination  of  an  American 
corporation's  liability  for  an  alleged  tort  and  we  have  been 
cited  to  no  authority,  American  or  English,  to  the  effect 
that  even  tho,  as  between  the  parties,  a  contract  of  agency 
might  be  construed  according  to  foreign  law,  the  tortious  lia- 
bility of  the  principal  to  third  parties  would  likewise  need 
to  be  so  construed.  If  defendant  were  doing  business  here 
thru  American  agents  there  could  be  no  question  of  its 
liability  for  torts  committed  by  them  within  the  scope  of 
their  agency.  Can  it  be  that  they  may  evade  such  liability 
merely  by  selecting  British  agents?  Under  the  act  of  Con- 
gress "the  laws  of  the  United  States"  are  "extended  over 
all  citizens  of  the  United  States"  in  China  "and  over  all 
others  to  the  extent  that  the  terms  of  the  treaties  respec- 
tively justify  or  require."  ^  Would  it  be  consistent  with 
this  language  to  hold  that  a  citizen  (natural  or  juridical) 
of  the  United  States  could  place  himself  under  different 
laws  by  employing  a  foreign  agent? 

The  case  ■*  cited  by  plaintiff's  counsel  seems  much  more 
analogous  to  that  at  bar  than  the  one  cited  by  defendant, 
the  sole  difference  being  that  this  action  is  brought  in  an 
extraterritorial  jurisdiction.  In  view  of  the  statutory 
language  just  quoted  we  are  unable  to  see  that  this  fact 
should  require  the  application  of  a  different  doctrine. 

Nor  can  we  accept  and  apply  to  this  court  the  doctrine 
advanced   on  the  unsupported   opinion   of   a  text   writer 

=  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.,  598;  41  L.  J.  Q.  B.,  253,  2 
English  Ruling  Cases,  471. 

"  U.  S.  Revised  Statutes,  sec.  4086.     See  ante  p.  6U. 

'Barrow  Steamship  Co.  v.  Kane,  170  U.  S.  100,  42  L.  ed.  964. 


EVERETT  V.  SWAYNE  &  HOYT,  DEC.  28,  1916.  gQg 

with  reference  to  the  British  consular  courts  that  all  parties 
to  litigation  before  them  must  be  habitually  within  their 
territorial  jurisdiction."'  Regardless  of  whether  such  a 
doctrine  is  authorized  under  British  legislation  (and  no 
authorities  are  cited)  we  find  no  American  legislation  which 
justifies  it.  On  the  contrary  the  courts  of  which  this  is 
the  successor  were  expressly 

"invested  with  all  the  judicial  authority  necessary  to  execute  the 
provisions  of  such  treaties,  respectively,  in  regard  to  civil  rights, 
whether  of  property,  or  person;  and  they  shall  entertain  jurisdic- 
tion in  matters  of  contract,  at  the  port  where,  or  nearest  to  which, 
the  contract  was  made,  or  at  the  port  at  which,  or  nearest  to  which, 
it  was  to  be  executed,  and  in  all  other  matters,  at  the  port  where, 
or  nearest  to  which,  the  cause  of  controversy  arose,  or  at  the  port 
where,  or  nearest  to  which,  the  damage  complained  of  was  sustained, 
provided  such  port  be  one  of  the  ports  at  which  the  United  States 
are  represented  by  consuls.  Such  jurisdiction  shall  embrace  all 
controversies  between  citizens  of  the  United  States,  or  others,  pro- 
vided  for  by   such   treaties,   respectively."  '^ 

We  see  nothing  in  this,  or  in  any  legislation  of  Congress, 
which  limits  the  jurisdiction  of  the  Court  to  parties  resident 
in  China.  On  the  contrary  the  American  courts  here  are 
expressly  given  jurisdiction  of  ''all  controversies  between 
citizens  of  the  United  States"  without  reservation  as  to 
residence.  Nor  does  the  attempt  to  apply  a  doctrine,  which 
confessedly  is  no  part  of  the  jurisprudence  of  the  United 
States,  merely  because  an  American  corporation  has  selected 
agents  of  another  nationality,  seem  to  us  consistent  with 
the  provisions  just  quoted. 

The  demurrer  is  accordingly 

OVERRULED. 


II.  ON  THE  MERITS. 
[Filed   December  28,   1916.] 

SYLLABUS. 

(By  the  Court.) 

1.  COMMON  CARRIERS:  DUTIES:  Under  the  Anglo- American  law,  it 
is  the  duty  of  a  common  carrier  to  serve  all  applicants  alike, 
unconditionally   and   without   discrimination. 


Piggott,   Exterritoriality,   199,  200. 
U.  S.  Rev.  Stats.,  sec.  4085. 


604  I   EXTRATERRITORIAL  CASES. 

2.  Id.  :    Conditional   Acceptance.     Such    a    carrier   is   not   justified 

in  refusing  to  accept  fi-eight  except  on  condition  that  the 
shipper  obtains  a  third  party's  consent. 

3.  Id.  :    Excuses  :    Sufficiency.     The    carrier    is    relieved    from    such 

duty  by  the  Act  of  God  or  the  public  enemy  but  not  by  causes 
which  he  can  remove,  nor,  according  to  the  weight  of  author- 
ity, by  the  acts  of  his  own.  servants. 

4.  Id.  :    Id.     Nor  is  it  a   sufficient  excuse   for   such   refusal   that   the 

carrier's  agents  are  subjects  of  a  foreign  power  which  pro- 
hibits trade  with  the  applicant  or  his  customers. 

5.  Id.:  Measure  of  Damages  for  Refusing  Freight.     The  applicant's 

measure  of  damages  for  such  refusal  is  reimbursement  for 
actual  loss  incurred  and  this  includes  assured  profits  from  a 
pending  contract. 

6.  Id.  :    Id.  :    Knowledge.     It  is   not   necessary   for   the   applicant  to 

prove  that  the  carrier  knew  of  such  contract. 

7.  Id.  :   Id.  :   Reduction  of  Damages.     But  against  such  profits  must 

be  charged  any  reduction  which  would  result  from  shipping 
the  goods  by  another  available   carrier. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  damages  from  a  common 
carrier  for  its  alleged  wrongful  refusal  to  accept  and 
transport  goods.  The  petition  avers  and  the  answer  ad- 
mits that  the  defendant  is  an  American  corporation,  and 
the  steamship  Yucatan  an  American  freighter  which 

"arrived  at  the  port  of  Shanghai,  China,  on  the  13th  day  of  May, 
1916,  under  charter  from  said  owners  to  the  said  defendants  for 
a  voyage  from  the  port  of  San  Francisco,  California,  to  ports  and 
places  in  China  and  Japan  and  I'eturn  to  San  Francisco,  and  for  other 
Pacific  Coast  ports  of  the  United  States.      (Par.  4.) 

"That  the  said  defendants  thru  their  said  agents  on  the  3rd  day 
of  May,  1916,  and  again  on  May  5,  1916,  refused  the  plaintiff's  said 
application  for  space  and  offer  to  ship  as  aforesaid  by  the  said  vessel 
on  said  voyage  upon  the  ground  that  they  did  not  have  space  avail- 
able on  said  vessel,  but  that  thereafter,  to  wit,  on  the  8th  day  of 
May,  1916,  after  plaintiff  had  called  to  the  attention  of  said  agents 
that  they  had  allotted  space  to  others  applying  at  a  date  subsequent 
to  the  time  of  plaintiff's  said  application,  the  said  agents  of  the 
defendants  offered  the  plaintiff  space  on  said  vessel  for  said  voyage 
provided  the  freight  offered  by  the  plaintiff  should  be  passed  by  the 
British  Consul  at  Shanghai  and  provided  plaintiff  did  not  offer  more 
freight  (or  cargo)  than  the  space  at  the  disposal  of  said  agents  for 
the  defendants.     (Par.  10.) 


EVERETT  V.  SWAYNE  &  HOYT,  DEC.  28,  1916.  605 

"That  plaintiff  declined  to  agree  to  the  aforesaid  conditional  ac- 
ceptance of  said  offer  by  said  defendants  thru  their  said  agents  in 
so  far  as  it  related  to  the  approval  of  the  British  Consul  at  said 
Shanghai,  and  demanded  that  the  defendants  thru  their  said  agents 
accept  said  freight  without  said  last  mentioned  condition.  That  de- 
fendants thru  their  said  agents  refused  to  comply  with  said  demand." 
(Par.  11.) 

By  way  of  justification  for  this  admitted  refusal  the 
answer  alleges : 

"That  defendant's  agents  Jardine,  Matheson  &  Co.  are  British 
subjects  and  as  such  were  prohibited  and  prevented  by  British  law 
and  Orders  in  Council,  rules,  regulations  and  decrees  of  the  British 
Government  from  dealing  in  any  way  directly  or  indirectly  with 
German  subjects,  or  their  agents,  or  German  enemy  goods.     (Par.  10.) 

"That  plaintiff  at  the  times  mentioned  in  said  petition  was  acting 
as  an  agent  for  German  subjects  and  the  cargo  offered  to  Jardine, 
Matheson  &  Co.,  defendant's  agents,  by  said  plaintiff  for  shipment  by 
the  said  steamship  Yucatan  was  cargo  owned  by  and  belonging  to 
German  enemy  subjects  of  Great  Britain.      (Par.  11.) 

"That  defendant's  agents,  Jardine,  Matheson  &  Co.,  were  prohib- 
ited and  prevented  by  the  authorities  of  the  British  Government 
from  accepting  and  shipping  the  cargo  offered  by  plaintiff."  (Par. 
12.) 

Plaintiff  in  his  replication, 

"admits  that  defendant's  agents,  Jardine,  Matheson  &  Company,  were 
prohibited  and  prevented  by  the  authorities  of  the  British  Govern- 
ment from  accepting  and  shipping  the  cargo  offered  by  plaintiff  but 
alleges  that  this  was  because  the  said  authorities  of  the  British  Gov- 
ernment had  placed  the  plaintiff  on  what  was  known  as  the  British 
blacklist  (the  same  being  a  list  of  neutrals  with  whom  British  sub- 
jects were  prohibited  from  having  business  dealings)  or  because  the 
said  British  authorities  suspected  that  said  cargo  was  owned  by 
German  subjects."     (Par.  3.) 

Defendant  having  elsewhere  admitted  that  "it  was  acting 
as  a  common  carrier"  and  its  refusal  to  accept  plaintiff's 
freight  being  thus  likewise  admitted  the  naked  legal  ques- 
tion is  presented  whether  the  justification  offered  for  such 
refusal  is  sufficient;  for  no  testimony  is  produced  except 
that  of  plaintiff  and  some  depositions  in  support  of  the 
petition.  The  question  of  liability  must,  therefore,  be  deter- 
mined largely  upon  the  pleadings. 

It  is  an  ancient  doctrine  that 


606  i   EXTRATERRITORIAL   CASES. 

"Common  carriers  owe  to  the  public  the  duty  of  carrying  indif- 
ferently for  all  who  may  employ  them,  and  in  the  order  in  which  the 
application  is  made,  and  without  discrimination  as  to  terms." ' 

The  doctrine  comes  to  us  directly  from  the  common  law,^ 
but  is  probably  older  for  there  was  a  similar  one  in  the 
civil  law  "  which  the  common  law  may  have  borrowed  ^°  and, 
each  applies  equally  to  carriers  by  land  or,  such  as  defend- 
ant, by  w^ater.^^ 

Subject  to  the  exceptions  presently  to  be  noted  this  duty 
is  imperative.  It  cannot  be  evaded  nor,  on  the  whole, 
limited  by  contract.^-  Even  where  the  commodity  offered 
for  shipment  is  under  a  general  legal  ban  (as  intoxicating 
liquor)  the  carrier  cannot  refuse  to  transport  it  if  the  par- 
ticular consignee  is  not  barred  from  receiving  it.^^ 

The  grounds  which  will  justify  a  refusal  to  perform  the 
duty  are  few.  Those  usually  enumerated  in  the  books  are, 
in  the  quaint  language  of  the  early  common  law,  the  "Act 
of  God"  (a  catastrophe  not  due  to  human  agency)  '*  or  of  the 

•6  Cyc.  372.  Cf.  10  C.  J.,  66,  and  Covington  Stock  Yards  Co.  v. 
Keith,  139  U.  S.  128,  35  L.  ed.  73;  Toledo  etc.  R.  Co.  v.  Wren,  78 
Ohio  137,  84  N.  E.  785. 

*  "The  early  law  as  to  common  carriers  is  thus  given  in  a  case  of 
the  date  of  1683:  'Action  on  the  case,  for  that  whereas  defendant  is 
a  common  carrier  from  London  to  Lymington  et  abinde  retrauum, 
and  setting  it  forth  as  the  custom  of  England,  that  he  is  bound  to 
carry  goods,  and  that  the  plaintiff  brought  him  such  a  pack,  he  re- 
fused to  carry  them  tho  offered  his  hire.  And  held  by  Jefferies,  C. 
J.,  that  the  action  is  maintainable,  as  well  as  it  is  against  an  inn- 
keeper for  refusing  a  guest,  or  a  smith  on  the  road  who  refuses  to 
shoe  a  horse,  being  tendered  satisfaction  for  the  same.  Note,  that 
it  was  alleged  and  proved  that  he  had  convenience  to  carry  the  same; 
and  the  plaintiff  had  a  verdict.  Jackson  v.  Rogers,  2  Show,  327,  89 
Eng.   Reprint,   965."     Jones'   Blackstone's   Commentaries,   1329. 

'Hunter,  Roman  Law,  512;  French  Civil  Code,  Arts.  1782,  1952, 
Spanish  Civil  Code,  Arts.  1601,  1783,  1784;  5  Corpus  Juris,  378. 

"  But  see  contra,  Cockburn,  C.  J.,  in  Nugent  v.  Smith,  1  C.  P.  D. 
428. 

"  6  Cyc.  368.     Cf.  note  8,  S7ipra. 

"6  Cyc.  392;  10  C.  J.,  40. 

"Royal  Brewing  Co.  v.   Missouri   etc.   R.   Co.,  217   Fed.    146. 

"6  Cyc.  377. 


EVERETT  V.  SWAYNE  &  HOYT,  DEC.  28,  1916.  607 

public  enemy.^^  The  latter  does  not  include  mob  violence.^® 
Whether  it  includes  a  strike  is  a  question  on  which  the 
courts  have  divided.  The  existence  of  a  strike  by  other 
than  the  carrier's  employees,  and  which  blocks  all  traffic, 
has  been  held  to  relieve  the  carrier  of  its  duty  to  receive 
and  transport  freight.^'  But  the  decision  ^^  cited  by  de- 
fendant's counsel  is  the  only  one  which  we  have  been  able 
to  find  to  the  effect  that  a  strike  of  the  carrier's  own 
employees  will  afford  such  excuse.  There  is  older  and 
ampler  authority  ^^  (ignored  in  that  opinion)  for  the  con- 
trary doctrine.  The  question  came  before  the  New  York 
Court  of  Appeals  as  early  as  1859  in  a  case  -°  where  a  rail- 
road company  sought  to  escape  its  common  carrier's  liability 
on  the  ground  that  its  engineers  had  refused  to  work.  In 
an  opinion  by  an  eminent  Judge  (Denio)  the  court  said,  in 
language  quite  apposite  here: 

"The  position  that  the  defendants  are  not  responsible,  because 
the  misconduct  of  their  servants  was  wilful  and  not  negligent,  can- 
not be  sustained.  The  action  is  not  brought  on  account  of  any  injury 
done  to  the  property  by  the  engineers,  but  for  an  alleged  nonperform- 
ance of  a  duty  which  the  defendants  owed  to  the  owner  of  the 
property.  If  their  inability  to  perform  was  occasioned  by  the  de- 
fault of  persons  for  whose  conduct  they  are  responsible,  they  must 
answer  for  the  consequences,  without  regard  to  the  motives  of  those 
persons.     *     *     * ' 

"Those  who  intrust  their  goods  to  carriers  have  no  means  of  as- 
certaining the  character  or  disposition  of  their  subordinate  agents 
or  servants;  they  have  no  agency  in  their  selection,  and  no  control 
over  their  actions.     *     *     * 

"Id.,  379. 

"Id. 

"Louisville  etc.  R.  Co.  v.  Queen  City  Coal  Co.,  99  Ky.  217,  35  S. 
W.  626. 

"*  Murphy  Hardware  Co.  v.  Southern  Ry.  Co.,  150  N.  C.  703,  64  S. 
E.   873. 

"Blackstock  v.  N.  Y.  etc.  R.  Co.,  20  N.  Y.  48,  75  Am.  Dec,  372. 
Cf.  Weed  v.  Panama  R.  Co.,  17  N.  Y.  362,  72  Am.  Dec.  474;  People 
v.  N.  Y.  etc.  R.  Co.,  28  Hun   (N.  Y.)   543;  9  Am.  &  Eng.  R.  Cas.  I. 

Such  was  also  the  Roman  Law  doctrine.  Bowyer,  Modern  Civil 
Law,  276. 

''"  Blackstock  v.  N.  Y.  etc.  R.  Co.,  20  N.  Y.  48,  75  Am.  Dec.  372. 


608  I  EXTRATERRITORIAL  CASES. 

"Being  a  corporation,  all  their  business  must  necessarily  be  con- 
ducted by  agents,  and  if  they  are  not  liable  for  their  acts  and  omis- 
sions, parties  dealing  with  them  have  no  remedy  at  all." 

In  a  similar  case  -'  arising  in  Illinois  the  supreme  court 
of  that  state  said: 

"It  is,  doubtless,  the  law,  that  railway  companies  cannot  claim 
immunity  from  damages  for  injuries  resulting  in  such  cases  from 
the  misconduct  of  their  employees,  whether  such  misconduct  be  wil- 
ful or  merely  negligent.  If  employees  of  a  common  carrier  suddenly 
refuse  to  work,  and  the  carrier  cannot  promptly  supply  their  places 
with  other  employees,  and  injury  results  from  the  delay,  the  carrier 
is  responsible;  such  delay  results  from  the  fault  of  the  employees." 

"It  is  a  well  settled  principle  of  law,"  observed  Mr.  Justice  Bid- 
die,"  "that  a  delay  caused  by  a  'strike'  or  mob  composed  solely  of 
the  employees  of  a  railroad  company  *  *  *  ^iu  not  excuse  the 
company  from  receiving  and  carrying  freight  according  to  its  con- 
tract or  public  duty." 

The  two  latter  quotations  are  obiter  dicta  but  they  serve 
to  disclose  an  attitude  of  the  courts  elsewhere  quite  incon- 
sistent with  that  expressed  in  the  North  Carolina  case  relied 
upon  by  defendant's  counsel  and  appear  to  us  to  state  the 
sounder  and  better  doctrine.  And  while  the  facts  above 
reviewed  are  not  strictly  parallel  to  those  in  the  case  at  bar, 
still  if  a  carrier  is  not  relieved  of  liability  by  conduct  of  its 
employees  which  is  contrary  to  its  orders  it  would  seem  a 
fortiori  that  exemption  could  not  be  claimed  where,  as  here, 
the  agent's  acts  are  not  disavowed  by  the  carrier. 

Under  all  the  authorities,  moreover,  the  obstacle  which 
will  excuse  the  carrier  must  be  one  which  he  cannot  remove 
with  proper  care.  Not  even  an  "Act  of  God"  will  relieve 
him  if  his  own  negligence  contributed  effectively  to  the 
result.--'  So,  altho  a  hoiia  fide  lack  of  shipping  facilities 
will  excuse  the  carrier,-^  it  must  appear  that  he  has  used 
ordinary  care  to  supply  them  not  only  from  the  locality  in 

"  Pittsburgh  etc.  R.  Co.  v.  Hazen,  84  111.,  36,  25  Am.  Rep.,  422. 
'"-  Pittsburgh  etc.  R.  Co.  v.  HoUowell,  65  Ind.,  188,  32  Am.  Rep.,  63. 
^Georgia  etc.  R.  Co.  v.  Barfield   (Ga.,  1907),  58  S.  E.,  236;   Fer- 
guson v.  Southern  R.  Co.,  91  S.  C,  61,  74  S.  E.,  129. 
"^Hutchinson,  Carriers    (3d.  ed.),  II,  sec.  495. 


EVERETT  V.  SWAYNE  &  HOYT,  DEC.  28,  1916.  609 

question  but  from  others  -^  and  it  is  no  defense  that  he  has 
failed  to  provide  them  or  has  depended  unsuccessfully  upon 
another.2^  In  a  recent  Pennsylvania  case  ^^  it  was  ob- 
served : 

"That  the  refusal  to  allow  plaintiffs  a  siding  connection  was  an 
undue  and  unreasonable  discrimination  against  them  was  too  clearly 
established  to  admit  of  question.  The  congested  condition  of  traffic 
on  defendant's  road,  which  was  offered  in  explanation,  afforded 
neither  excuse  nor  extenuation.  The  means  of  'protection  against 
such  condition  was  in  defendant's  own  hands.  It  was  under  no  duty 
to  haul  more  coal  than  could  safely  and  conveniently  be  transported 
over  its  line;  but  a  bounden  duty  did  rest  upon  it,  in  limiting  the 
amount  to  be  accepted  by  it,  because  of  extraordinary  conditions, 
to  show  no  preference  as  between  shippers,  and  to  treat  all  alike  on 
some  equitable  basis." 

Applying  to  the  case  at  bar  these  principles  (for  no 
precedent  on  all  fours  with  this  case  has  been  cited  or 
found)  we  must  inquire  whether  defendant  used  sufficient 
care  to  avoid  the  situation  which  led  it  to  refuse  plain- 
tiff's cargo.  As  we  have  seen,  the  averment  is  that 
the   agents    were   prohibited   by   their    (not   defendant's) 

25  "poj.  aught  the  evidence  shows  to  the  contrary,  the  appellant, 
by  the  use  of  ordinary  care,  could  have  sent  in  cars  from  other  divi- 
sion points,  without  discommoding  shippers  at  those  points,  in  order 
to  supply  the  temporary  needs  of  shippers  at  the  station  of  Pryatt. 

"Altho  the  demand  for  stock  cars  was  great  and  unusual  on  the 
division  on  which  Pryatt  is  situated  during  the  time  appellees  were 
seeking  to  ship  their  cattle,  it  was  the  duty  of  the  appellant  to  en- 
deavor to  meet  this  unusual  demand  and  to  satisfy  the  requirements 
of  shippers  from  that  station  by  exercising  ordinary  care  to  have 
the  need  supplied."  St.  Louis  etc.  R.  Co.  v.  Keefe,  113  Ark.,  215,  168 
S.  W.,  131. 

^^  "It  was  the  duty  of  the  defendant  as  a  common  carrier  to  fur- 
nish reasonable  facilities  for  the  transportation  of  commodities  along 
its  line.  The  fact  that  it  had  no  cars  at  the  time  of  its  purchase  of 
the  road,  or  the  fact  that  another  company  had  failed  to  supply  its 
cars,  is  not  a  sufficient  answer  to  this  requirement,  unless  it  be  shown 
that  reasonable  facilities  had  been  provided  for  the  procurement  of 
cars  from  another  company,  which  had  proved  inefficient  on  account 
of  the  unprecedented  and  unexpected  emergency."  Missouri  etc.  R. 
Co.  V.  Sneed,  85  Ark.,  293,  107  S.  W.,  1182. 

*'Cox  v.  Pennsylvania  R.  Co.   (Pa.),  85  Atl.,  863. 
14008  o.  w. — S9 


610  I  EXTRATERRITORIAL  CASES. 

national  authorities  from  accepting  it.  But  there  is  no 
claim  that  this  prohibition  was  legally  effective  against 
defendant  or  that  it  could  not  easily  have  employed  other 
agents  who  were  exempt  therefrom.  In  the  language  of 
the  opinion  last  cited,  therefore,  "the  means  of  protection 
against  such  condition  was  in  defendant's  own  hands." 
And  wherever  such  is  the  case  the  common  carrier's  liabil- 
ity continues. 

We  have  seen,  too,  that  the  carrier  cannot  shift  the 
responsibility  to  his  employees,  even  where  they  defy  his 
orders  and  assume  an  attitude  adverse  to  him.  There  is 
no  averment  here  that  the  acts  of  defendant's  agents 
V7ere  such.  For  aught  that  appears  the  agents'  policy  was 
also  that  of  the  principal. 

The  briefs  contain  considerable  discussion  as  to  how 
far  the  agent's  knowledge  may  be  imputed  to  the  princi- 
pal. It  may  be  conceded  that  defendant  was  not  presumed 
TO  know  the  British  Enemy  Trading  Acts  but  it  is  hard 
to  conceive  of  knowledge  more  important  for  its  agents 
to  communicate  than  their  own  restrictions  as  to  those 
from  whom  they  were  permitted  to  accept  freight.  Clearly 
this  is  a  matter  which  they  should  have  reported  to  de- 
fendant and,  as  a  rule,  what  they  should  have  done  they 
are,  as  regards  plaintiff,  conclusively  presumed  to  have 
done.-^ 

But  aside  from  this  presumption  we  do  not  see  that  it 
v/ould  aid  defendant  if  it  were  proven  positively  that  its 
agents  did  not  so  inform  it  and  that  it  remained  ignorant 
of  the  fact  that  its  agents  would  not  accept  freight  from 
all  who  might  apply.  That  would  merely  show  that  the 
agents  were  acting  adversely  to  their  principal,  which, 
as  we  have  seen,  will  not,  according  to  the  weight  of 
authority,  relieve  the  latter  from  liability. 

Defendant  emphasizes  in  its  brief  the  fact  that  its 
"agents  offered  to  accept  the  cargo  provided  plaintiff  could 
procure  the  consent  of  the  British  Consul."  But  that 
was  a  condition;  and,  as  we  have  seen,  a  common  carrier 
must  serve  all  unconditionally  and  equally,  and  while  the 


31   Cyc,   1451,   1640,   1587. 


EVERETT  V.  SWAYNE  &  HOYT,  DEC.  28,  1916.  gH 

common  law  may  have  been  modified  for  the  British  Em- 
pire by  the  recent  Enemy  Trading  Acts  these  have  no 
appHcation  to  Americans.  Moreover  the  testimony 
(Walker's  Deposition)  shows  that  others  were  given  space 
without  conditions.  Indeed,  the  petition  (par.  8)  alleges 
and  the  answer  (par.  4)  admits  that  defendant  was 
"accepting  offers  for  allotting  space  to  the  public  generally." 
Besides  it  seems  clear  that  the  agents  knew  plaintiff  could 
not  meet  the  condition. 

We  must  find,  therefore,  that  defendant  has  not  shown 
exemption  from  its  common  carrier's  obligation ;  that  its 
duty  was  to  receive  plaintiff's  freight;  and  that,  by  its 
refusal,  it  incurred  liability. 

II. 

The  measure  of  damages  for  such  refusal  varies  accord- 
ing to  the  status  of  the  applicant.  If  he  is  the  owner 
of  the  goods  offered  for  shipment  and  the  object  is  a 
sale  at  destination,  he  is  entitled  to  the  difference  between 
the  market  price  at  the  latter  and  that  prevailing  at  the 
point  of  application,  less  freight  charges.^^  To  this  is 
sometimes  added  the  element  of  depreciation  while  the 
goods  are  awaiting  shipment,^"  and  always  the  award 
must  be  such  as  will  reimburse  the  applicant  for  actual 
loss.^^  Thus  he  is  entitled  to  recover  any  profits  he  would 
have  realized  from  the  refused  shipment.^^     In  a  case  ^^ 


''6  Cyc,  375,  note  72;  Hutchinson,  Carriers  (3d  ed.),  Ill,  sec.  166; 
St.  Louis  etc.  R.  Co.  v.  Leder  Bros.,  87  Ark.,  298,  112  S.  W.,  744; 
Toledo  etc.  R.  Co.  v.  Wren,  78  Ohio  St.,  137,  84  N.  E.,  785. 

"  Shoptaugh  V.  St.  Louis  etc.  R.  Co.  147  Mo.  Appl.  8,  126  S.  W.,  752. 

"^  Delaivure.  Williams  v.  Armour  Car  Lines,  7  Pen.  (Del.  275), 
79  Atl.,  919. 

Kentucky.  Louisville  etc.  R.  Co.  v.  Ohio  Valley  Co.,  161  Ky.,  212, 
170  S.  W.,  633. 

Mississippi.     Parish  v.  Yazoo  etc.  R.  Co.  (Miss.,  1913) ,  60  So.,  322. 

Pennsylvania.  Hillsdale  Coal  &  Coke  Co.  v.  Pennsylvania  R.  Co., 
229  Pa.,  61,  78  Atl.,  28. 

Texas.  Missouri  etc.  R.  Co.  v.  Empire  Express  Co.  (Tex.  Civ. 
App.),  173  S.  W.,  222. 

"  Houston  etc.  R.  Co.  v.  Campbell,  91  Tex.,  551,  45  S.  W.,  2;  Houston 
etc.  R.  Co.  V.  Hill,  70  Tex.,  51,  7  S.  W.,  659. 

"^Hillsdale  Coal  &  Coke  Co.  v.  Pennsylvania  R.  Co.,  229  Pa.,  61, 
78  Atl.,  28. 


512  I  EXTRATERRITORIAL  CASES. 

where  a  coal  company  had  been  refused  proper  facilities 
by  a  common  carrier  the  supreme  court  of  Pennsylvania 
approved  the  following  instruction  to  the  jury: 

"As  we  look  at  it,  the  only  known  method  to  get  data  from  which 
to  estimate  what  a  man  is  damaged  by  reason  of  discrimination  in 
not  furnishing  cars  or  other  facilities  of  transportation  is  to  give 
the  shipper  discriminated  against  what  would  have. been  a  reasonably 
fair  profit  on  whatever  is  shown  to  be  the  fairly  probable  output 
of  the  mine  discriminated  against,  less  what  was  actually  shipped 
from  such  mine." 

The  same  authority  quotes  with  approval  this  statement 
of  the  doctrine  by  the  supreme  court  of  Michigan: 

"The  profits  lost  constitute  the  legitimate  measure  of  damages. 
The  law  is  not  so  blind  to  justice  as  not  to  require  the  defendant  to 
respond  in  damages  if  there  is  any  reasonable  basis  for  their  as- 
certainment." °* 

In  the  case  at  bar  plaintiff  was  not  the  owner  of  the 
goods  offered  for  shipment  and  hence  could  not  claim  the 
measure  of  damages  applicable  to  transportation  for  sale. 
But  we  think  it  clear  from  the  authorities  just  reviewed 
that  he  is  entitled  to  reimbursement  for  the  loss  incurred 
by  the  refusal  of  shipment,  including  profits  therefrom. 
Another  case  ^'  quite  analogous  in  principle  was  one  where 
plaintiff  had  contracted  to  sell  railway  excursion  tickets 
in  reliance  upon  the  defendant  company's  promise  to  issue 
an  unlimited  number.  It  was  held  that  the  measure  of 
plaintiff's  damage  for  defendant's  nonperformance  was 
the  profit  the  former  would  have  received  from  the  tickets 
he  had  sold. 

It  is  admitted  (p.  8)  that  defendant's  freight  rates  on 
the  Yucatan  were  G.  $16.50  per  ton.  But  it  is  undisputed 
that  plaintiff  had  made  contracts  with  his  customers  by 
which  he  was  to  receive  G.  $30  per  ton  for  what  he  should 
ship  for  them.  It  appears  (pp.  8,  12)  that  these  con- 
tracts were  entered  into  when  freight  rates  were  high  in 
Shanghai  and  that  by  the  time  application  for  space  was 
made  to  defendant  there  had  been  a  fall  of  almost  one- 
half — a  situation  so  much  a  part  of  local  history  that  this 
court  might  almost  take  judicial  notice  thereof. 


"  Hitchcock  V.  Supreme  Tent,  100  Mich.,  40,  58  N.  W.,  640. 
"» Houston  etc.  R.  Co.  v.  Hill,  70  Tex.,  51,  7  S.  W.,  659. 


EVERETT  V.  S WAYNE  &  HOYT,  DEC.  28,  1916.  613 

There  is  nothing  to  indicate  that  defendant  or  its  agents 
knew  of  plaintiff's  contracts  with  his  customers.  But  that 
was  not  necessary.^*'  Nor  was  there  any  speculative 
element  in  plaintiff's  profits.  In  some  of  the  cases  above 
cited  prospective  profits  were  allowed  on  estimated  sales 
and  probable  contracts.  But  here  the  contracts  were 
actually  made  and  the  proceeds  susceptible  of  exact  calcu- 
lation and  it  seems  to  us  that  the  carrier's  refusal  was 
an  even  more  direct  and  proximate  cause  of  the  loss  of 
these  profits  than  in  the  authorities  heretofore  cited. 

But  we  also  think  that  something  must  be  charged 
against  these  profits.  Defendant's  counsel  contends  that 
the  true  measure  of  damages  here  "could  only  be  the 
difference  between  the  rate  at  which  defendant's  agents 
accepted  cargo  from  other  shippers  and  the  rate  actually 
paid  by  plaintiff  to  ship  his  cargo  by  other  steamers." 
He  cites  no  case  in  which  this  rule  is  applied,  but  it 
seems  reasonable  to  require  that  an  applicant  who  is  re- 
fused service  by  one  common  carrier  should  not  charge 
the  whole  damage  upon  the  latter  if  another  is  ready  to 
provide  service  which  will  prevent,  or  at  least  reduce, 
the  damage.  Such  a  principle  obtains  in  the  law  of  Master 
and  Servant ;  ^^  it  seems  equitable  and  sound  and  we  see 
no  reason  why  it  should  not  also  be  applied  here. 

Plaintiff  testifies  in  response  to  his  counsel's  questions: 

"Q.   You  had  this  cargo  for  shipment  at  $30  a  ton? 

A.  Yes. 

Q.  What  ultimately  became  of  it,   did   you   ship   it? 

A.  No,  Arnold   Karberg  shipped -it  by  some  people  in   Kobe. 

They  shipped  the  carge  to  Kobe  and  afterwards  shipped  it  to 
America  and  I  had  the  cargo  from  the  Tientsin  firm  shipped  to 
Kobe  for  transfer  to  America,  but  I  made  no  profit  on  it  and  the 
services  were  absolutely  without  remuneration.  I  lost  the  business 
and  the  profit,  besides  it  took  up  a  lot  of  time  and  trouble." 


'"  Houston  etc.  R.  Co.  v.  Campbell,  91  Tex.,  551,  45  S.  W.,  2. 

"  26  Cyc,  1006,  1014.  "When  the  defendant  knew  that  the  trans- 
portation would  not  be  furnished,  he  was  not  bound,  in  order  to 
recover  for  the  wrong  done  him,  to  prepare  and  offer  the  wood.  As 
argued  by  his  counsel,  it  was  his  duty  to  pursue  that  course  best 
calculated  to  lessen  the  damage  resulting  from  the  wrong."  Houston 
etc.  R.  Co.  V.  Campbell,  91  Tex.,  551,  45  S.  W.,  2. 


614  I  EXTRATERRITORIAL  CASES. 

On  cross-examination  he  states  further: 

"Q.  You  assisted  in  shipping  the  Arnold  Karberg  cargo  thru  to 
Japan? 

A.  Yes,  it  was  done  in  my  name  and  sent  to  the  godown  and 
insured  in  my  name,  and  I  can  vouch  that  it  was  not  in  the  name 
of  Arnold   Karberg  who  made  the  arrangement. 

Q.  In  name  you  were  the  shipper. 

A.  As  forwarding  agent." 
******* 

Q.  Altho  you  could  not  ship  it  yourself  still  the  German  firm 
could  ship  it. 

A.  Yes,  they  did  it  thru  a  Japanese  firm  and  it  was  not  shipped 
in  their  own  name. 

Q.  You  made  no  effort  to  ship  it  yourself? 

A.  Well,  I  did,  but  they  were  satisfied  to  take  it  over  and  did  it 
themselves." 

On  being  asked  "the  rate  across  the  Pacific"  for  this 
shipment  he  replied : 

"I  estimate  between  $25  and  $26  including  all  things  such  as 
lighterage,  commissions." 

Elsewhere  he  says: 

"If  I  could  get  the  cargo  away  by  the  Yucatan  at  $16 «  should  I 
go  to  the  Japanese  lines  for  $25  or  $26  a  ton?" 

It  seems  clear  from  this  that  plaintiff's  customer  was 
given  a  rate  by  the  Japanese  company  about  G.  $4.50  per 
ton  less  than  that  fixed  in  the  contract  with  plaintifl^, 
tho  the  shipment  was  made  in  his  name  at  least  as  "for- 
warding agent."  He  admits  in  effect  (pp.  10,  13),  that 
he  did  not  ask,  and  hence  was  not  refused,  space  from 
said  company  for  this  particular  cargo,  and  without  a 
positive  showing  to  that  effect,  we  think  it  would  be  in- 
equitable to  charge  upon  the  defendant  more  than  the 
difference  between  its  rate  and  that  of  the  Japanese  com- 
pany which  would  be  about  G.  $9  per  ton. 

On  the  other  hand,  we  do  not  think  defendant  has  shown 
that  other  shipping  facilities  were  available  to  plaintiff 
at  the  time.  After  stating  that  "the  British  firms  and 
their  allies  would  not  do  business  with  me,"  plaintiff 
testifies : 

"Q.  When  the  Yucatan  shut  out  that  cargo  you  took  no  efforts  to 
ship  by  other  lines  and  dropped  the  matter? 


EVERETT  V.  SWAYNE  &  HOYT,  JAN.  6,  1919.  615 

A.  No,  I  beg  to  differ  there.  I  tried  to  make  negotiations  or 
arrangements  with  Andersen,  Meyer  and  other  steamship  people. 

Q.  You  restricted  your  efforts  to  American  steamers? 

A.  Yes,  I  might  say  that  I  tried  to  get  a  Vladivostok  steamer, 
but  the  Yucatan  was  the  only  vessel  I  could  take  advantage  of." 

We  might  almost  take  judicial  notice  that  the  lines 
mentioned  in  plaintiff's  testimony  included  all  of  those 
then  operating  and  the  burden  was  on  defendant  to  show 
that  the  Japanese  company  was  not  the  only  one  open  to 
plaintiff.^*  We  must  therefore  find  that  he  is  entitled  to 
recover  as  damages  for  defendant's  refusal  the  difference 
between  its  rate  and  that  of  the  Japanese  company  which 
was,  as  we  have  seen,  G.  $9  per  ton.  As  it  is  admitted 
that  three  hundred  tons  were  offered  the  whole  would 
amount  to  G.  $2,700. 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
have  and  recover  from  defendant  the  sum  of  two  thou- 
sand seven  hundred  dollars  United  States  currency  together 
with  his  costs. 

III.   ON  WRIT  OF  ERROR  IN  THE  COURT  OF  APPEALS. 
BEFORE  CIRCUIT  JUDGES   GILBERT,  ROSS   AND   HUNT. 

Ira  A.  Campbell,  Esq.,  and  McCutchen,  Olney  &  Willard, 
for  plaintiff  in  error. 

Garret  W.  McEnnerney ,  Esq.,  for  defendant  in  error. 

[Filed  January   6,   1919.] 

Ross,  C.  J.: 

This  case  comes  here  from  the  United  States  Court  for 
China.  It  is  a  writ  of  error  sued  out  by  the  defendant 
to  an  action  there  brought  by  the  present  defendant  in 
error  to  recover  damages  for  the  refusal  of  the  plaintiff 
in  error,  a  common  carrier,  to  receive,  without  lawful 
excuse,  certain  cargo  offered  it  by  the  plaintiff  to  the  action 
for  shipment  from  Shanghai  by  the  steamer  Yucatan, 
which  had  been  advertised  to  be  on  the  berth  at  Shanghai 
for  freight  to  San  Francisco. 

The  facts  are  practically  undisputed,  and  are,  briefly, 
these:  Swayne  &  Hoyt  was  a  California  corporation 
having  its  principal  place  of  business  at  San  Francisco, 

''26   Cyc,   1006. 


616  I   EXTRATERRITORIAL   CASES. 

and  was  therefore  an  American  citizen,  and  was  a  common 
carrier  of  freight  between  the  Orient  and  that  among 
other  places.  It  had  as  its  agent  at  Shanghai  a  British 
corporation  styled  Jardine,  Matheson  &  Company,  Limited, 
and  had  under  charter  the  said  steamship  for  a  voyage 
from  San  Francisco  to  China  and  Japan  and  return  to  San 
Francisco  and  other  Paciftc  coast  ports  of  the  United 
States. 

Prior  to  the  arrival  of  the  Yucatan  at  Shanghai  the 
plaintiff  in  the  case  applied  to  the  agent  of  the  defendant 
there  for  space  to  ship  certain  goods,  in  response  to 
which  application,  after  one  denial  of  it,  the  agent  agreed 
to  provide  the  requested  space  upon  condition  that  the 
application  be  approved  by  the  British  Consul  at  Shanghai. 
That  conditional  acceptance  was  refused.  The  cargo 
offered  for  shipment  by  the  plaintiff  was  being  handled 
by  him  for  German  subjects,  by  reason  of  which  fact  he 
was  blacklisted  by  the  British  government,  and  all  British 
subjects,  including  the  agent  of  the  defendant  corpora- 
tion, were  inhibited  from  dealing  with  the  plaintiff  respect- 
ing this  particular  shipment  as  well  as  all  other  such  ship- 
ments. The  defendant  through  its  British  agent  having 
refused  to  accept  the  cargo  offered  by  Everett,  the  action 
was  brought,  resulting  in  the  judgment  of  the  court  below 
in  his  favor  for  $2,700.00,  with  costs. 

But  two  questions  of  law  are  involved,  first,  whether 
the  court  below  had  jurisdiction  of  the  subject-matter 
of  the  action,  and,  if  so,  then  secondly,  its  merits. 

By  Section  1  of  the  Act '''  of  June  30,  1906,  creating  the 
court  below,  it  is  given 

"exclusive  jurisdiction  in  all  cases  and  judicial  proceedings  whereof 
jurisdiction  may  now  be  exercised  by  United  States  consuls  and 
ministers  by  law  and  by  virtue  of  treaties  between  the  United  States 
and  China,  except  in  so  far  as  the  said  jurisdiction  is  qualified  by 
Section  Two  of  this  Act." 

The  qualification  specified  in  Section  2  of  the  Act  has 
no  bearing  upon  the  present  case,  and,  therefore,  no  fur- 
ther mention  of  it  need  be  made. 


34  U.  S.  Stats,  at  Large,  814. 


SWAYNE  &  HOYT  V.  EVERETT,  JAN.  6,  1919.  617 

At  the  time  of  the  passage  of  the  Act  of  June  30,  1906, 
there  were  in  force  the  provisions  of  Sections  4083,  4084 
and  4085  of  the  Revised  Statutes,  by  which  certain  judi- 
cial authority  was  conferred  upon  United  States  ministers 
and  consuls  in  certain  countries,  including  China,  which 
jurisdiction  embraced  all  controversies  between  citizens 
of  the  United  States  or  others,  provided  for  by  its  treaties. 

The  treaty  with  China  bearing  upon  the  present  ques- 
tion was  that  of  June  18,  1858,*°  and  conferred  upon  the 
United  States  the  right  to  appoint  consuls  in  various  parts 
of  China.     Its  XXVIIth  article  is  as  follows: 

"All  questions  in  regard  to  rights,  whether  of  property  or  person, 
arising  between  citizens  of  the  United  States  in  China,  shall  be 
subject  to  the  jurisdiction  and  regulated  by  the  authorities  of  their 
own  government;  and  all  controversies  occurring  in  China  between 
citizens  of  the  United  States  and  the  subjects  of  any  other  govern- 
ment shall  be  regulated  by  the  treaties  existing  between  the  United 
States  and  such  governments,  respectively,  without  interference  on 
the  part  of  China." 

It  is  the  contention  of  the  plaintiff  in  error  that  the 
words  "in  China"  in  the  foregoing  Article  qualify  the  word 
"citizens"  and  not  the  word  "arising;"  in  other  words, 
that  a  residence  of  the  parties  in  China  is  essential  to  the 
existence  of  any  jurisdiction  in  the  court.  We  think  it 
obvious  that  such  a  construction  of  the  provision  is  wholly 
inadmissible,  for  the  subject  matter  thereby  dealt  with 
is  controversies  arising  in  China.  The  first  clause  of  the 
provision  relates  to  controversies  in  regard  to  rights, 
whether  of  property  or  person,  there  arising  between 
citizens  of  the  United  States,  and  declares  that  they  shall 
be  subject  to  the  jurisdiction  and  be  regulated  by  the 
authorities  of  their  own  government;  and  by  its  second 
clause  it  is  declared  that  all  such  controversies  there 
arising  between  citizens  of  the  United  States  and  the 
subjects  of  any  other  government  shall  be  regulated  by 
the  treaties  existing  between  the  United  States  and  such 
governments,  respectively — in  each  instance  without  in- 
terference on  the  part  of  China.  We  regard  it  as  clear 
that  this  is  the  very  plain  meaning  of  the  article  in  ques- 


12  U.  S.  Stats,  at  Large,  p.  1029,  Malloy,  Treaties,  I,  220. 


618  I   EXTRATERRITORIAL  CASES. 

lion.  As  said  by  counsel  for  the  defendant  in  error,  the 
bare  reading  of  its  second  clause  is  all  that  is  necessary 
to  show  that  the  words  "in  China,"  there  used,  fix,  as 
the  basis  of  the  jurisdiction  of  the  court,  the  place  of  the 
origin  of  the  controversy,  and  not  the  residence  of  the 
parties  thereto.  No  sound  reason  is  suggested  why  a 
like  construction  should  not  be  placed  upon  the  first  clause. 
To  adopt  the  view  urged  by  the  plaintiff  in  error  would 
be,  in  effect,  to  hold  a  consular  court  in  China  vested  with 
jurisdiction  of  a  controversy  between  American  citizens 
arising  in  the  United  States  if  they  happened  to  be  resi- 
dents of  China. 

Upon  the  merits  we  think  the  case  equally  clear. 

It  does  not  admit  of  doubt  that  a  common  carrier,  with 
certain  well-established  exceptions,  is  under  legal  obliga- 
tion to  carry  the  goods  of  any  member  of  the  public  who 
may  tender  them  for  carriage.  That  such  a  carrier  sub- 
ject to  such  legal  obligation  may  show  that  it  was  pre- 
vented from  performing  it  by  Act  of  God  or  a  public 
enemy,  or  by  some  other  cause  over  which  it  had  no  con- 
trol, is  readily  conceded ;  but  in  all  such  cases  the  defense 
is  an  affirmative  one,  and  the  burden  is  upon  the  carrier 
to  both  plead  and  prove  it.*^ 

At  the  time  of  the  occurrences  in  question,  England  and 
Germany  were  at  war,  but  the  United  States  was  not; 
on  the  contrary,  this  country  was  then  observing  strict 
neutrality  between  those  belligerents.  How,  then,  can  it 
be  properly  held  that  the  performance  of  the  clear  legal 
duty  of  an  American  carrier  to  receive  and  transport  goods 
tendered  for  carriage,  by  an  American  citizen,  is  excused 
on  the  ground  that  the  British  government  had  forbidden 
its  citizens  and  corporations,  one  of  which  happened  to 
be  the  agent  of  the  American  carrier,  from  receiving  the 
tendered  freight  and  providing  for  its  transportation? 
Such  is  not  the  law  as  we  understand  it.*^ 


^'1  Michie  on  Carriers,  sec.  381;  Chicago  etc.  R.  R.  Co.  v.  Wolcott, 
141  Ind.,  267,  39  N.  E.  Rep.,  451. 

''  See  Richards  &  Co.,  Inc.  v.  Wreschner,  156  N.  Y.  Supp.,  1054, 
and  the  numerous  cases  there  cited. 


UNITED  STATES  V.  RINCON,  JULY  2  4,  1916.      619 

It  is  contended  on  behalf  of  the  carrier  that  there  was 
no  evidence  to  show  that  it  knew  that  its  agent  at  Shanghai 
was  inhibited  by  the  British  government  from  shipping 
the  goods  of  the  plaintiff  in  time  to  have  employed  an 
agent  not  under  such  disability.  Whether  or  not  the 
carrier  knew  of  the  inhibition  at  all,  or  was  apprised  of 
it  in  time  to  have  employed  another  agent,  the  fact  re- 
mains that  the  agent  it  did  appoint,  acting  within  the 
scope  of  his  employment,  deprived  the  plaintiff  of  his  legal 
right.  For  that  wrong  we  think  the  carrier  was  properly 
adjudged  liable,  even  assuming  that  it  was  ignorant  of 
its  agent's  disability."     The  judgment  is 

AFFIRMED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Manuel  Rincon. 

[Cause  No.  518;  filed  July  24,  1916.] 

SYLLABUS. 

(By  the  Court.) 

1.  CRIMINAL  PROCEDURE:  A  Plea  OF  GuiLTY  admits  only  the  specific 

averments  of  the  information. 

2.  Even  facts  judicially  noticed,  if  essential  and  not  alleged,  are  not 

admitted  by  such  a  plea. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Joseph  W.  Rice,  Esq.,  for  the  defense. 

Lobingier,  J.: 

The  accused  pleads  guilty  to  an   information  charging 
him  with 

"the  crime  of  false  pretense:  in  that  the  said  Manuel  Rincon,  within 
the  jurisdiction  of  the  said  Court,  at  Shanghai,  China,  did,  on  or 
about  the  4th  of  July,  1916,  falsely  pretend  to  one  Sing  Fat  &  Co. 
that  a  certain  paper  purporting  to  be  a  certificate  of  indebtedness 
for  One  Hundred  Fifty-Seven  Dollars  (Mexican)  and  by  him  offered 
and  given  to  the  said  Sing  Fat  &  Co.  in  payment  of  two  Diamond 


''  See  Chesapeake  &  Ohio  R.  Co.  v.  Francisco,  149  Ky.,  307,  148  S. 
W.,  46. 


620  I   EXTRATERRITORIAL   CASES. 

Rings  sold  and  delivered  to  the  said  Manuel  Rincon  by  the  said 
Sing  Fat  &  Co.,  was  a  good  and  valid  certificate  of  indebtedness  for 
the  said  payment  for  the  said  two  Diamond  Rings,  by  means  of 
which  the  said  Manuel  Rincon  did  then  and  there  obtain  from  the 
said  Sing  Fat  &  Co.  the  said  two  Diamond  Rings,  with  the  intent  then 
and  there  to  cheat  and  defraud  them,  the  said  Sing  Fat  &  Co.,  of  the 
same;  Whereas  in  fact  the  said  certificate  of  indebtedness  was  signed 
by  the  said  Manuel  Rincon  with  a  fictitious  name,  namely,  *M.  R. 
Alvarez,'  for  the  payment  of  the  aforesaid  sum  of  One  hundred 
Fifty-Seven    Dollars    (Mexican)." 

The  sole  question  to  be  determined  is  the  penalty.  The 
Act  of  Congress  under  which  the  prosecution  is  brought 
provides : 

"Whoever,  by  any  false  pretense,  with  intent  to  defraud,  obtains 
from  any  person  anything  of  value,  or  procures  the  execution  and 
delivery  of  any  instrument  of  writing  or  conveyance  of  real  or  per- 
sonal property,  or  the  signature  of  any  person,  as  maker,  indorser, 
or  guarantor,  to  or  upon  any  bond,  bill,  receipt,  promissory  note, 
draft,  or  check,  or  any  other  evidence  of  indebtedness,  and  whoever 
fraudulently  sells,  barters,  or  disposes  of  any  bond,  bill,  receipt, 
promissory  note,  draft,  or  check,  or  other  evidence  of  indebtedness, 
for  value,  knowing  the  same  to  be  worthless,  or  knowing  the  signa- 
ture of  the  maker,  indorser,  or  guarantor  thereof  to  have  been 
obtained  by  any  false  pretenses,  shall,  if  the  value  of  the  property 
or  the  sum  or  value  of  the  money  or  property  mentioned  or  de- 
scribed in  the  instrument  so  obtained,  procured,  sold,  bartered,  or 
disposed  of  is  thirty-five  dollars  or  upward,  be  imprisoned  not  less 
than  one  year  nor  more  than  three  years;  or,  if  less  than  that 
sum,  shall  be  fined  not  more  than  two  hundred  dollars  or  imprisoned 
for  not  more  than   one  year,  or  both."  ^ 

It  will  be  seen  that  the  information  fails  to  allege  the 
value  of  the  diamond  rings  thus  admitted  to '  have  been 
received  nor  is  it  alleged  that  the  sum  mentioned  in  the 
certificate  of  indebtedness  is  more  than  thirty-five  dollars 
United  States  currency.  It  may  be,  as  the  District  At- 
torney suggests,  that  we  may  take  judicial  notice  of  the 
value  of  Mexican  currency  altho  we  have  found  no  authority 
other  than  that  the  value  of  United  States  currency  may 
be   judicially   noticed.-     "But,"   says   the   same   authority, 

*Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  842,  p.  1326;  amended  32  U.  S.  Stats,  at  Large, 
Sess.  I,  Ch.  1329,  p.  535. 

'  Cyc,  XXII,  303. 


I-  UNITED  STATES  V.  ALLEN,  SEPT.  29,   1916.  621 

"the  fact  that  the  court  will  take  judicial  notice  of  certain  matters 
essential  to  the  proof  of  the  offense  will  not  render  it  unnecesary 
to  aver  such  matter,  if  necessary  to  its  description,  in  order  to 
advise  the  accused  of  the  charge  which  he  must  be  prepared  to  meet." ' 
For  "by  a  plea  of  guilty  the  accused  simply  confesses  that  he  is 
guilty  in  manner  and  form  as  charged  in  the  indictment,  and  if  the 
indictment  charges  no  criminal  offense,  or  is  otherwise  fatally  de- 
fective,  it  may  be   subsequently  attacked   on   that  ground."  * 

In  view  of  these  authorities  we  have  reached  the  con- 
clusion, contrary  to  our  first  impression,  that  the  accused 
by  his  plea  of  guilty  did  not  admit  the  amount  of  the  cer- 
tificate of  indebtedness  to  be  more  than  thirty-five  dollars 
gold  and  that  the  testimony  subsequently  ofi'ered  as  to  the 
value  of  Mexican  currency  should  not  be  considered  so  long 
as  the  accused  was  not  permitted  to  withdraw  his  plea. 

He  is  therefore  sentenced  to  six  months  of  imprisonment, 
to  be  served  in  the  Prison  for  American  convicts  at  Shang- 
hai, China,  unless  and  until  directions  are  given  for  his  trans- 
fer to  Bilibid  Prison,  Manila,  territory  of  the  Philippines; 
and  to  pay  a  fine  of  two  hundred  dollars,  United  States  cur- 
rency, with  subsidiary  imprisonment  according  to  law  in 
case  of  non-payment,  and  the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  John  T.  Allen. 

[Causes  No.  537  and  538;  filed  September  29,  1916.] 

SYLLABUS. 

(By  the  Court.) 

1.  ASSAULT:   DISPLAY  OF  WEAPON.     By  the  weight  of  authority  the 

display  of  a  firearm  "in  a  menacing  manner"  is  sufficient  to 
constitute  an  assault  tho  it  is  neither  held  horizontally  nor 
actually  pointed  at  another. 

2.  Id.  :  Id.  :   If  the  person  affected  has  a  well-founded  belief  that  the 

firearm  is  loaded,  proof  that  it  is  so  is  not  essential. 

3.  Id.  :  Id.  :  Similarly  the  weapon  may  be  defective,  provided  the  other 

party  has  no  knowledge  of  the  defect  and  believes  that  it  is 
dangerous. 

4.  Id.  :  Id.  :  Evidence  examined  and  found  sufficient  to  show  that  the 

weapon   in   the   principal   case  was  displayed   in   a   threatening 

'Cyc,  XXII,  303.  *  Id.  XII,  353. 


622  I  EXTRATERRITORIAL  CASES. 

manner  at  one  who  believed  that  it  was  both  loaded  and  dan- 
gerous. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

M.  L.  Heen,  Esq.,  for  defendant. 

LOBINGIER,  /.; 

The  accused  is  charged  in  both  of  these  causes  with 

"the  crime  of  'assault  and  threatening  in  a  menacing  manner;'  in 
that  the  said  John  T.  Allen,  on  the  fourteenth  day  of  September, 
1916,  did  assault  and  threaten  by  the  display  of  a  firearm,  namely 
a  pistol,  and  in  words  did  threaten" 

a  different  person  named  in  each  information. 

It  is  admitted  by  the  accused  that  he  did  have  a  pistol  on 
his  person  at  the  time  and  occasion  as  charged  and  that  he 
did  display  it  to  the  one  named  in  the  information  in  cause 
No.  537,  to  wit :  Anton  Katsomitis.  The  principal  difference 
among  the  witnesses  in  said  cause  arises  in  regard  to  the 
manner  of  such  display.  The  complaining  witness  (Katso- 
mitis), who  is  the  proprietor  of  the  saloon  called  the  "Naval 
Club"  at  which  the  accused  admits  having  been  on  said  date, 
declares  that  the  latter  drew  the  pistol  and  pointed  it  at  the 
complaining  witness,  holding  it  horizontally.  This  testimony 
is  corroborated  by  that  of  the  witness  Stanley,  a  pianist  at 
the  saloon,  who  says  also  that  the  pistol  was  cocked.  Foley, 
another  witness  for  the  prosecution,  describes  the  display 
of  the  weapon  as  follows: 

"He  holds  the  gun  out  of  his  hip  pocket  and  then  puts  it  in  front 
with  the  point  of  it  protruding  towards  Mr.  Katsomitis." 

(Cross   Examination.) 

Q.  "How   long   did   he   hold   the   gun? 
A.  Long  enough  to  scare  me. 

Q.  How  did  he  hold  the  gun,  like  that?  (indicating)  close  to  the 
waist? 

A.  Yes,  close  to  the  waist." 

On  the  other  hand  the  accused  and  the  witness  Brauer 
who  testified  in  his  behalf,  claim  that  the  former  merely 
"showed"  the  pistol  and  did  not  threaten  the  complaining 
witness.  Brauer  admits,  however,  that  there  was  a  heated 
argument  between  the  complaining  witness  and  the  accused 


UNITED  STATES  V.  ALLEN,  SEPT.  2  9,   1916.  623 

about  a  dog.  Moreover  neither  of  them  denies  the  unani- 
mous testimony  of  the  prosecution's  witnesses  that  the 
complaining  witness  made  a  hurried  escape,  which  is  unex- 
plained on  any  other  theory  than  that  he  felt  himself  in 
danger.  The  testimony  of  these  last  named  witnesses,  that 
the  display  of  the  weapon  was  merely  the  menacing  cul- 
mination of  a  wordy  attack  in  which  the  accused  was  the 
aggressor,  seems  to  us  much  more  credible  than  the  latter's 
claim  that  there  was  no  dispute  or  quarrel,  and  that  he 
produced  the  weapon  merely  to  demonstrate  that  he  had 
one.  Foley  differs,  indeed,  from  the  other  government 
witnesses  in  describing  the  position  in  which  the  pistol  was 
held;  but  all  of  them  agree  that  it  was  displayed  in  a 
threatening  manner. 

If,  however,  we  were  to  accept  only  defendant's  version 
of  the  manner  in  which  he  held  the  weapon  and  should  con- 
sider, as  we  must,  in  connection  therewith  the  admission 
that  there  was  a  heated  argument  and  the  undisputed  flight 
of  the  complaining  witness,  this  would  be  sufficient,  ac- 
cording to  the  clear  preponderance  of  authority,^  to  es- 

^  California.  "When  the  party  draws  the  weapon,  altho  he  does 
not  directly  point  it  at  the  other,  but  holds  it  in  such  a  position  as 
enables  him  to  use  it  before  the  other  party  could  defend  himself, 
at  the  same  time  declaring  his  determination  to  use  it  against  the 
other,  the  jury  are  fully  warranted  in  finding  that  such  was  his 
intention."     People  v.  McMakin,  8  Cal.,  547,  549. 

Missouri.  The  gun  need  not  be  raised  to  the  shoulder  nor  pointed 
at  the  other  party.     State  v.  Epperson,  27  Mo.,  255. 

North  Carolina.  State  v.  Rawles,  65  N.  C,  334;  State  v.  Church, 
63  N.  C,  15. 

South  Carolina.  "The  drawing  of  the  pistol  may  itself  constitute 
the  assault."  State  v.  Sullivan,  43  S.  C,  205,  21  S.  C,  4,  citing 
State  V.  Jackson,  32  S.  C,  27,  10  S.  C,  769. 

Texas.  Higginbotham  v.  State,  23  Tex.  575;  Bodeman  v.  State 
(Cr.  App.),  40  S.  W.,  981,  where  the  accused  merely  reached  for  the 
pistol  and  the  complainant  fled. 

Washington.  State  v.  McFadden,  42  Wash.,  1,  84  Pac,  401,  where 
the  accused  was  only  "proceeding  to  draw  the  revolver." 

The  principal  authority  to  the  contrary  is  Lawson  v.  State,  30 
Ala.,  14,  where  the  opinion  consists  of  four  sentences  and  gives  no 
reasons. 

In  State  v.  Barry,  45  Mont.,  598,  124  Pac,  775,  cited  by  defend- 
ant's counsel,  the  accused  was  not  even  put  in  fear. 


624  I  EXTRATERRITORIAL  CASES. 

tablish  the  crime  of  assault.  There  are,  indeed,  decisions 
to  the  contrary,  but  they  are  not  only  much  fewer  in  num- 
ber; they  are,  in  our  judgment,  less  reliable  and  sound  in 
doctrine.  In  establishing  a  new  rule  for  this  jurisdiction 
we  should  consider  it  very  unsafe  to  hold  that  a  party  may 
display  a  pistol  in  such  a  manner  as  to  threaten  another 
into  escape  and  yet  be  guilty  of  no  offence. 

The  accused  also  states  that  the  pistol  was  unloaded. 
There  is  no  corroboration  of  this  and  while  there  is  no  ex- 
press contradiction  because  none  of  the  other  witnesses 
had  examined  the  pistol  on  the  day  in  question,  and  while 
we  cannot  consider  the  testimony  of  Smith,  the  complaining 
witness  in  cause  No.  538,  who  says  that  he  had  seen  the 
weapon  frequently  at  defendant's  house  and  found  it  loaded 
and  "ready  for  action ;"  still  the  prevailing  rule  appears 
to  be  that  this  is  a  matter  of  defense  which  the  accused 
must  prove  -  and  the  Court  is,  of  course,  not  obliged  to 
accept  the  statement  of  a  single  and  interested  witness. 

But  assuming  that  the  pistol  was  not  loaded,  this  would 
not  excuse  the  defendant.  For  while  there  is  also  a  conflict 
among  the  authorities  as  to  the  effect  of  displaying  an  un- 
loaded pistol,  and  while  defendant's  counsel,  with  com- 
mendable industry,  has  produced  a  number  on  his  side  of 
the  question,  not  only  is  the  great  preponderance  in  favor 
of  the  view  that  such  display  is  criminal  ^  but  the  point  has 
been  so  settled  for  us  by  the  Court  of  Appeals  *  which 
adopts  as  its  doctrine  the  statement  of  a  well-known  text- 
writer  ^  that 

"if  within  shooting  distance  one  menacingly  points  at  another  with 
a  gun,  apparently  loaded,  not  loaded  in  fact,  he  commits  an  assault 
the  same  as  if  it  were  loaded." 

^Montana.     State  v.  Herron,  12  Mont.,  230,  33  Am.  St.  Rep.,  576. 

North  Carolina.     State  v.  Cherry,  33  N.  C,  475. 

Texas.     Crow  v.  State,  41  Tex.,  468;  Caldwell  v.  State,  5  Tex.,  18. 

In  California  (People  v.  Jacobs,  29  Cal.,  579)  and  Nevada  (State 
V.  Nappers,  6  Nev.  113)   it  has  been  decided  otherwise. 

^  Corpus  Juris,  V,  725,  note  85. 

*  Price  V.  U.  S.,  ante,  p.  129. 

"Bishop,  Criminal  Law  (3rd  ed.),  II,  sec.  53.  Cf.  People  v.  Mitch- 
ell, 139  Iowa,  455,  116  N.  W.,  808,  one  of  the  last  opinions  written 
by  the  late  Justice  McLain,  author  of  the  most  recent  and  com- 
prehensive work  on  American  criminal  law. 


UNITED  STATES  V.  ALLEN,  SEPT.  29,  1916.  025 

The  accused  further  states  that  the  main  spring  of  the 
pistol  was  broken.  The  state  of  the  testimony  on  this  point 
is  similar  to  that  regarding  the  one  just  discussed.  But 
again  accepting  the  defendant's  testimony,  we  are  of  the 
opinion  that  a  similar  legal  doctrine  applies;  for  the  com- 
plaining witness  evidently  did  not  believe  that  the  weapon 
was  defective,  otherwise  he  would  not  have  fled,  and  the 
test  of  the  criminal  character  of  the  act  is  the  well-founded 
belief  of  the  one  affected.  The  author  followed  as  above 
shown  by  the  Court  of  Appeals  adds  in  the  same  connection : 

"There  is  no  need  for  the  party  assailed  to  be  put  in  actual  peril, 
if  only  a  well-founded  apprehension  is  created.  For  his  suffering  is 
the  same  in  the  one  case  as  in  the  other,  and  the  breach  of  the 
public  peace  is  the  same." ' 

So  even  in  jurisdictions  where  the  doctrine  prevails  that 
the  mere  display  of  a  weapon  is  not  sufficient,  convictions 
of  assault  have  been  upheld,  tho  the  pistol  was  without 
a  cap.  ' 

The  charge  in  cause  No.  538  rests  on  the  testimony  of 
a  single  witness  who  states  that  the  accused  did  display, 
tho  he  did  not  point,  the  pistol  at  him.  This  is  denied  not 
only  by  the  accused  but  by  the  other  two  witnesses  who  were 
present  and  claim  not  to  have  seen  such  display.  There 
are  some  circumstances  which  corroborate  the  com- 
plaining witness,  and  it  may  even  be  that  his  testimony 
is  the  more  probable ;  but  in  view  of  the  previous  relations 
between  him  and  the  accused,  which  did  not  appear  to  have 
been  at  all  times  friendly,  we  cannot  say  that  this  charge 
is  established  beyond  a  reasonable  doubt  and  we  therefore 
apply  the  doctrine  elaborated  in  a  recent  case.* 

Accordingly  we  find  the  accused  guilty  of  threatening 
"in  a  menacing  manner"  the  complaining  witness  in  cause 
No.  537  but  find  the  evidence  insufficient  to  convict  in 
cause   No.   538. 

In  fixing  the  penalty  we  cannot  overlook  the  fact  that  this 
is  not  the  accused's  first  offense.     In  Criminal  cause  No. 

'Bishop,  Criminal  Law  (8th  ed.),  II,  sec.  32;  followed  in  Clark  v. 
State  (Okla.  Cr.  App.),  106  Pac,  804. 

'  Flournoy  v.  State,  16  Tex.,  31 ;  Mullen  v.  State,  45  Ala.,  43,  6 
Am.  Rep.,  691. 

'  U.  S.  V.  Martin,  ante,  p.  549. 

14008  O.  W. 40 


626  I  EXTRATERRITORIAL  CASES. 

89  he  was  convicted  of  unlawfully  selling  intoxicating  li- 
quors without  a  license ;  in  Criminal  cause  No.  90  he  was  con- 
victed of  keeping  a  disorderly  house ;  in  each  of  which  he  was 
given  only  a  moderate  fine.  Later  he  failed  to  comply  with 
an  undertaking  to  appear  in  this  court  and  instead  dis- 
appeared and  was  not  found  within  the  jurisdiction  for  a 
considerable  time.  It  is  evident,  therefore,  that  leniency 
has  not  been  eff"ective  in  his  case  and  something  more  than 
a  fine  is  necessary.  The  statute  under  which  he  is  here 
convicted  provides  for  a  fine  of  not  more  than  $500  or  im- 
prisonment of  not  more  than  twelve  months,  or  both.*^ 

He  is  accordingly  sentenced  to  six  months  of  imprison- 
ment to  be  served  in  Bilibid  Prison,  Manila,  Territory  ol 
the  Philippines,  said  term  to  date  from  incarceration  therein 
and  to  pay  the  cost  of  this  prosecution.  Pending  his  trans- 
portation thereto  he  will  be  detained  in  the  Prison  for 
American  Convicts  at  Shanghai,  China. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  LucY  Lucker's  Will. 

[Cause  No.  548;  filed  November  24,  1916.] 

SYLLABUS. 
(By  the  Court.) 

I.WILLS:   Holographic  wills  need  not  be  subscribed  nor  attested. 

2.  Id.  :  Administration  :  Lack  of  Executor.     A  testamentary  instru- 

ment, otherwise  valid,  will  not  be  denied  probate  because  it 
fails  to  name  an  executor;  in  such  case  an  administrator  cum 
testamento  annexo  will  be  appointed. 

3.  Id. :   Id.:   The  surviving  spouse,  especially  if  he  is  also  the  father 

of  the  other  beneficiary  named  in  such  instrument,  has  a  special 
claim  to  be  .so  appointed. 

Harry  A.  Lucker,  pro  se. 
Nemo  contra. 

LOBINGIER,  J.: 

This  is  an  application  for  the  probate  of  an  instrument 
purporting  to  be  the  last  will  and  testament  of  Lucy  Lucker 
who,  according  to  the  testimony,  died  in  Tientsin,  July  2, 


•  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854  (District  of  Columbia 
Code),  sec.  806. 


IN  RE  LUCKER'S  WILL,  NOV.   24,   1916.  627 

1916,  leaving  property  within  the  jurisdiction  of  this  Court. 
Her  relatives  were  given  personal  notice  of  the  hearing, 
no  opposition  was  offered  to  the  petition  for  probate  and  the 
proof  as  to  testamentary  capacity  and  mental  condition 
seems  sufficient. 

The  petitioner,  who  was  also  the  husband  of  the  deceased, 
testifies  that  the  instrument  is  entirely  in  her  handwriting. 
It  is,  however,  neither  subscribed  nor  attested  and  the  first 
question  to  determine  is  whether  that  fact  prevents  its  ad- 
mission to  probate. 

At  common  law  it  seems  that  an  holographic  will  {i.  e., 
one  written  by  the  testator)  was  valid  without  witnesses.^ 
Thus  a  mere  letter  of  the  deceased,  giving  directions  as  to 
the  disposition  of  his  property  in  case  of  death  was  ad- 
mitted to  probate  as  his  last  will  and  testament.-  There 
are  dicta  which  restrict  this  rule  to  personalty  ^  but  it  has 
also  been  applied  to  realty.* 

The  Acts  of  Congress  relating  to  both  Alaska  ^  and  the 
District  of  Columbia  *'  require  two  witnesses  to  a  will  and 
make  no  exception.  But  in  the  latter  jurisdiction  '  it  has 
been  held,  nevertheless,  that  an  holographic  will  need  not 
be  witnessed;  and  the  Federal  Supreme  Court  has  upheld 
the  doctrine.®     The  principle  of  all  these  decisions  is  that 


'  England.  Habberfield  v.  Browning,  cited  in  Mathews  v.  Warner, 
4  Ves.  Jr.,  186,  200,  note  31,  Eng.  Reprint,  96. 

Maine.     Leathers  v.  Greenacre,  53  Me.,  561. 

-Boyd  V.  Boyd,  6  G.  &  J.  (Md.),  25;  Byers  v.  Hoppe,  61  Md.,  207, 
48  Am.  Rep.,  89. 

^  Mclntire  v.  Mclntire,  19  D.  C,  482.     Cf.  40  Cyc,  1130,  note  9. 

*  Federal.  Eaton  v.  Brown,  193  U.  S.,  411,  48  L.  ed.,  730;  9  Prob., 
627. 

California.     In  re  Barton's  Estate,  52  Cal.,  538. 

Kentucky.     Baker  v.  Dobyns,  4  Dana,  220. 

"No  attesting  witnesses  were  necessary  to  make  the  paper  a  valid 
will  in  this  state  of  both  realty  and  personalty."  Morris  v.  Morton's 
Ex'rs   (Ky.  1892),  20  S.  W.,  287. 

"  Act  of  June  6,  1900,  31  U.  S.  Stats,  at  Large,  Ch.  786,  Tit.  II,  sec. 
138,  p.  511;   Alaska  Compiled  Laws,  sec.  564. 

'  Act  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  Ch.  854,  p.  1433, 
sec.  1626;  District  of  Columbia  Code,  sec.  1626. 

'  Mclntire  v.  Mclntire,  19  D.  C,  482. 

'Mclntire  v.  Mclntire,  162  U.  S.,  383,  40  L.  ed.,  1009;  Eaton  v. 
Brown,  193  U.  S.,  411,  48  L.  ed.,  730. 


528  I  EXTRATERRITORIAL  CASES. 

the  fact  of  the  testator  having  taken  pains  to  write  the 
entire  instrument  himself  obviates  the  necessity  of  other 
attestation.  The  high  standing  of  the  courts  above  cited 
fully  justifies  us,  despite  the  statutes,  in  adhering  to  the 
doctrine  announced  ■'  early  in  the  history  of  this  court,  that 
an  holographic  will  needs  no  witnesses.  Indeed  there  is 
even  more  reason  for  adopting  it  in  a  country  like  China 
where  so  many  of  our  citizens  live  in  comparative  isola- 
tion and  where  even  two  comprehending  witnesses  are  not 
always  available. 

II. 

Another  peculiarity  of  this  instrument  is  that  it  names 
no  executor.     This  is  a  defect  but  not  a  fatal  one. 

"The  opinion  that  the  naming  of  an  executor  was  indispensable 
to  the  validity  of  a  will  'has  long  since  been  abandoned  in  England, 
and  never  obtained  in  the  United  States.' "  Many  documents  which 
omitted  to  name  an  executor  have  been  admitted  to  probate  in  the 
Courts  of  this  State,  and  we  are  satisfied  that  in  this  State  the 
naming  of  an  executor  is  not  essential  to  the  validity  of  a  will."  " 

Where  the  instrument  is  otherwise  valid  the  proper 
course  in  such  cases  is  for  the  court  to  appoint  an  admin- 
istrator cum  testamento  annexo.^'-  Here  the  petitioner  is 
not  only  the  surviving  spouse  who,  in  some  jurisdictions 
is  entitled  to  preference,' ■  but  he  is  also  the  father  of  the 
other  beneficiary,  the  infant  son  of  the  deceased. 

It  is  therefore  considered  and  decreed  that  the  instru- 
ment in  question  be  admitted  to  probate  as  the  last  will 
and  testament  of  the  deceased,  and,  it  appearing  that  the 
petitioner  is  the  natural  and  proper  person  to  administer 

°  In  re  Allen's  Will,  ante,  p.  92. 

"  Citing,  Redfield  on  Wills,  I,  5. 

"  California.     In  re  Barton's  Estate,  52  Cal.,  538. 

See  also: 

Maryland.     Byers  v.  Hoppe,  61  Md.,  207,  48  Am.  Rep.,  89. 

New  York.  Matter  of  Nies,  13  N.  Y.  St.  Rep.,  756;  Brandy  v.  Mc- 
Crosson,  5  Redf.  Surr.,  431.  Cf.  Matter  of  Davis,  45  Misc.,  554,  92  N. 
Y.  Suppl.,  968,  affirmed,  105  App.  Div.,  221,  93  N.  Y.  Suppl.,  1004,  and 
again  in  182  N.  Y.,  468,  75  N.  E.,  530. 

"  Cyc.  XVII,  98,  note  55,  and  cases  there  cited. 

"/n  re  Meyers'  Estate,  113  N.  C,  545,  18  S.  E.,  689;  Brodie  v. 
Mitchell,  85  Md.,  516,  37  Atl.,  169. 


UNITED  STATES  V.  HUNTER,  JAN.  3,   1917.  529 

the  said  estate,  it  is  further  ordered  that  letters  of  adminis- 
tration thereof,  cum  testamento  annexo,  issue  to  him  upon 
his  taking  the  oath  and  executing  the  statutory  undertaking 
in  a  sum  double  the  value  of  the  personal  estate. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  R.  Hunter. 

[Cause  No.  560;  filed  January  3,  1917.1 

SYLLABUS. 
(By  the  Court.) 

1.  CRrMES:  Information:  Time.     Where  the  information  charges  the 

commission  of  the  offense  "on  or  about"  a  certain  date,  the 
fact  that  it  appears  to  have  been  committed  one  day  after  that 
specified  is  immaterial, 

2.  Id. :   Larceny:   Restitution.     Under  the  Act  of  Congress  of  June 

30,  1902,  the  Court  has  discretion  to  order  restitution  of  prop- 
erty taken  by  one  convicted  of  larceny  and  this  provision  may 
be  enforced  by  subsidiary  imprisonment. 

Earl  B.  Rose,  Esq.,  Special  U.  S.  Attorney,  for  the  prose- 
cution. 

Lieut.  W.  B.  Jupp,  Naval  Judge  Advocate,  for  the  defense. 

LOBINGIER,  J.: 

The  information  in  this  cause  charges  the  accused  with 

"the  crime  of  Petit  Larceny:  In  that  the  said  R.  Hunter  at  Shanghai, 
China,  within  the  jurisdiction  of  this  Court,  on  or  about  the  28th. 
day  of  October,  1916,  in  a  place  of  business  known  as  the  "Mascot 
Bar"  at  No.  410  North  Szechuen  Road,  did  feloniously  take  and 
carry  away  from  the  said  place  of  business  certain  wines  and 
liquors  of  a  value  of  Gold  $35.00  or  less     *     *     *." 

The  witnesses  for  the  prosecution  are  the  bar  maid  and 
the  bar  man  who  testify  independently  that  the  accused 
with  another  came  to  their  place  on  a  Sunday  evening  in 
October,  between  six  and  seven  o'clock,  and,  finding  them 
alone,  proceeded  to  appropriate  the  articles  mentioned,  and 
carried  them  away,  and  that  the  accused  also  struck  each 
of  them  when  they  protested. 

The  accused  failed  to  testify  and,   tho   represented  by 


630  I  EXTRATERRITORIAL  CASES. 

counsel,  no  witnesses  were  called  on  his  behalf,  so  that 
the  testimony  of  the  prosecution  stands  uncontradicted. 
In  argument  some  stress  was  laid  on  the  fact  that  the 
first  witness  gave  the  date  as  October  28,  which,  it  appears, 
was  a  Saturday,  and  not  a  Sunday;  but  the  same  witness 
testified  that  she  did  not  read  English  and  the  mistake  in 
dates,  while  easily  made,  would  not  necessarily  affect  the 
balance  of  her  testimony.  The  information,  it  will  be  seen, 
charges  the  commission  of  the  offence  "on  or  about  the 
28th  day  of  October"  which  would  include  the  29th,  if 
such  were  the  date.  There  being  no  contrary  evidence  we 
must  find  the  accused  guilty  of  the  offence  as  charged  in  the 
information. 

Under  the  Act  of  Congress  of  June  30,  1902 : 

"Whoever  shall  feloniously  take  and  carry  away  any  property  of 
value  of  thirty-five  dollars  or  less,  including  things  savoring  of  realty, 
shall  be  fined  not  more  than  two  hundred  dollars  or  be  imprisoned 
for  not  more  than  one  year,  or  both.  And  in  all  convictions  for 
larceny  either  grand  or  petit,  the  trial  justice  may,  in  his  sound 
discretion,  order  restitution  to  be  made  of  the  value  of  the  money 
or  property  shown  to  have  been  stolen  by  the  defendant  and  made 
way  with  or  otherwise  disposed  of  and  not  recovered."  * 

No  extenuating  circumstances  having  been  suggested  and 
it  appearing  to  the  contrary  that  there  were  several  ag- 
gravating circumstances  including  the  physical  force  used 
on  the  inmates  of  the  place,  and  the  apparent  selection  of 
the  time  when  it  would  be  least  frequented,  we  are  of  the 
opinion  that  only  a  substantial  term  of  imprisonment  will 
satisfy  the  provision  of  the  statute. 

The  accused  is  accordingly  sentenced  to  nine  months  of 
imprisonment  to  be  served  in  Bilibid  Prison,  at  Manila, 
Territory  of  the  Philippines,  and,  pending  transportation 
thereto,  is  remanded  to  the  custody  of  the  United  States 
Marshal  for  China. 

Both  witnesses  testify  that  the  value  of  the  property  was 
Mexican  $80  and  that  the  owners  of  the  establishment  were 
a  Spaniard  named  "Amalo"  and  the  first  witness  for  the 
prosecution.  Under  the  second  provision  of  the  statute 
above  quoted  the  accused  is  therefore  adjudged  to  make 

*  32  U.  S.  Stats,  at  Large,  Sess.  I,  Part  I,  page  535,  sec.  827. 


IN  RE  turner's  will,  JAN.  20,  1917.  Q^\ 

restitution  to  said  owners  in  the  said  sum  of  Mexican  $80, 
with  subsidiary  imprisonment  according  to  law,  in  case  of 
insolvency,  and  to  pay  the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  James  Turner's  Will. 

[Cause  No.  503;  filed  January  20,  1917.] 

SYLLABUS. 
(By  the  Court.) 

I.WILLS:    The  Presumption  is  against  partial  intestacy  and  that  a 
decedent's  will  covers  his  entire  estate. 

2.  Id.  :  Punctuation.     Courts  are  authorized  to  supply  punctuation  for 

the  purpose  of  clearing  up  ambiguity  in  an  informal  will. 

3.  Id.  :   Interpretation.     The  phrase  "all  my  valuables"  in  such  an 

instrument  construed  to  cover  the  testator's  entire  estate,  both 
real  and  personal. 

Stvtiing  Fessenden,  Esq.,  Administrator  cum  testamento 
annexo,  pro  se. 

No  appearance  contra. 

Lobingier,  J.: 

The  instrument  which  has  been  admitted  to  probate  as 
the  last  will  and  testament  of  the  deceased  is  an  informal 
one,  apparently  having  not  only  been  written  by  the  tes- 
tator but  composed  by  him,  and  in  phraseology  differs 
considerably  from  the  ordinary  instruments  of  the  kind. 
The  dispositive  part  of  the  will  is  as  follows : 

"I  desire  that  all  my  just  debts  and  testamentary  expenses  be 
paid  by  my  Executrix  here  in  after  named  as  soon  after  my  decease 
as  may  be  found  practicable. 

"I  give  and  bequeath  unto  my  wife  Edna.  Enow.  Turner  all  my 
Valuables  Household  Effects  and  all  and  every  sum  or  sums  of  Money 
that  may  be  found  in  my  possession  or  that  may  be  due  or  owing 
to  me  at  time  of  decease  likewise  all  and  every  sum.  or  sums  that 
may  be  deposited  in  any  Banks  or  Companies  in  my  name  at  time 
of  decease,  that  my  wife  Edna.  Enow.  Turner  be  the  Executrix  of 
this  my  last  Will  and  Testament  hereby  revoking  all  former  and 
other  Wills  made  by  me  heretofore  and  declare  this  to  be  my  Last 
Will  and  Testament." 


632  I  EXTRATERRITORIAL  CASES. 

The  cause  comes  before  us  at  this  time  upon  the  petition 
of  the  Administrator  cum  testamento  annexo  for  distribu- 
tion, the  said  petition  alleging 

"that  the  Will  of  the  said  James  Turner  filed  of  record  herein  makes 
no  reference  to  or  disposition  of  certain  real  property  and  shares 
in  corporations  as  inventoried  in  the  original  petition  filed  herein, 
and  furthermore  said  Will  contains  no  general  clause  or  words 
disposing  of  or  intending  to  dispose  of  the  residue  or  remainder  of 
the  said  estate  after  making  certain  specific  bequests  as  in  said 
Will  set  forth." 

Where,  as  here,  it  is  proved  that  the  deceased  left  a  will, 
the  presumption  is  against  partial  intestacy ;  in  other  words, 
it  is  presumed,  in  the  absence  of  a  contrary  showing,  that 
the  instrument  was  intended  to  cover  all  of  the  testator's 
property.     As  stated  in  a  work  of  authority:  ^ 

"The  presumption  is  that  a  testator  intended  to  dispose  of  his 
entire  estate  and  not  to  die  intestate  either  as  to  the  whole  or  as  to 
any  part  thereof,  and  the  will  should  be  so  construed  unless  this 
presumption  is  clearly  rebutted  by  the  provisions  of  the  will  or  by 
evidence  to  the  contrary,  and  in  some  jurisdictions  such  a  construc- 
tion is  required  by  statute;  and  the  fact  that  there  is  no  residuary 
clause  in  the  will  strengthens  this  presumption." 

As  will  be  observed  from  the  averments  of  the  petition  as 
well  as  from  reading  the  excerpts  above  quoted  there  is  no 
"residuary  clause"  in  this  instrument,  and  in  the  words 
of  the  authority  quoted,  the  presumption  against  partial 
intestacy  is  strengthened.  It  will  also  be  noticed  that  in 
describing  the  property  intended  to  pass  by  the  will,  the 
testator  uses  the  phrase  "all  my  Valuables  Household  Effect's 
and  all  *  *  *  sum  or  sums  of  money"  etc.  There  is  no 
comma  after  the  word  "Valuables"  but  evidently  there  should 
be,  for  the  word  is  used  only  as  a  noun  and  independently, 
and  could  not  be  applied  to  the  words  which  follow.  In 
such  cases  the  Court  must  "supply  punctuation  for  the 
purpose  of  clearing  up  ambiguity  in  the  will."  -  Thus 
punctuated  the  testator  seeks  to  dispose  of  "all  my  Valu- 
ables, Household  Effects,"  etc.  The  term  "valuables"  is 
not  a  technical  one  but  the  testator  was  evidently  not 
familiar  with  technical  phraseology  and  the  question  is 
not  whether  he  used  the  phrase  which  an  experienced  scriv- 


*  40  Cyc,  1409-1410.  '  Id.,  1403. 


IN  RE  TURNER'S  WILL,   JAN.   2  0,   1917.  633 

ener  or  draftsman  would  employ  in  the  preparation  of  such 
an  instrument,  but  what  he,  the  testator,  intended  to  pass 
by  using  the  term  "valuables."  This  is  not  unlike  the  word 
"efiects"  which  has  often  been  used  in  instruments  of  this 
kind  and  given  a  very  comprehensive  interpretation  by  the 
Courts. 

"The  word  'effects'  in  its  primary  and  ordinary  meaning  includes 
only  personal  estate,  goods,  movables,  and  chattel  property.  It  de- 
notes property  in  a  more  extensive  sense  than  goods,  and  includes 
all  kinds  of  personal  property.  But  in  its  broadest  sense  of  prop- 
erty or  worldly  substance  it  may  include  land,  and  should  be  so 
construed  when  it  appears  from  other  parts  of  the  will  that  such 
was  the  testator's  intention."  ^ 

It  was  alleged  in  the  original  petition  for  probate  that 
the  deceased  left  surviving  him  five  children,  one  of  whom 
has  attained  his  majority.  But  there  is  no  evidence  or 
suggestion  of  an  intention  or  expression  on  the  part  of  the 
deceased  that  any  of  these  should  share  in  the  estate.  The 
testator  having  mentioned  only  his  wife,  having  included 
no  residuary  clause,  and  having  specified  no  other  property 
or  beneficiary,  must,  we  think,  have  intended  by  using  the 
phrase  "all  my  valuables"  to  leave  his  entire  estate,  real 
and  personal,  to  his  widow.  In  other  words  we  consider 
his  direction  by  that  phrase  not  less  comprehensive  than 
if  he  had  said  "all  my  effects"  which,  it  has  been  seen, 
may  include  all  property.  That  such  was  the  intention 
seems  clear  and,  in  the  interpretation  of  wills,  the  testator's 
intention  is  the  pole  star.* 

It  appearing  from  the  affidavit  of  the  publisher  that 
mo.e  than  the  statutory  six  months  have  elapsed  since  the 
publication  of  notice  to  creditors  and  it  appearing  also 
from  the  petition  now  before  us  that  "no  claims  or  de- 
mands whatsoever  have  been  presented"  it  is  ordered  that 
claims  against  the  said  estate  be  and  the  same  are  hereby 
barred  and  the  Administrator  cum  testamento  annexo  is 
directed  to  distribute  the  assets  of  said  deceased,  after  pay- 
ing the  expenses  of  administration,  to  the  beneficiary  named 
in  the  will,  viz.,  Edna  Enow  Turner,  widow  of  the  deceased. 


'  Id.,  1527. 

*Bispham,  Principles  of  Equity  (7th  ed.),  sec.  65. 


634  I   EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  H.  C.  Sandage. 

[Cause  No.  559;  filed  January  25,  1917.] 

SYLLABUS. 
(By  the  Court.) 

1.  CRIMINAL   PROCEDURE:    NOLLE   PROSEQUI:    TiME.     A   motion   for 

Nolle  Prosequi  may  be  made  at  any  stage  of  a  criminal  cause. 

2.  Id. :   Id.:   Grounds.     Where  such  motion  is  based  upon  newly  dis- 

covered evidence  convincing  the  prosecutor  that  there  is  a 
reasonable  doubt  of  the  accused's  guilt,  and  w^here  reparation 
has  also  been  made  to  the  offended  party  who  expresses  him- 
self satisfied  therewith,  such  motion  will  ordinarily  be  sustained 
as  of  course. 

Earl  B.  Rose,  Esq.,  Special  U.  S.  Attorney,  for  the  prose- 
cution. 

Lieut.  W.  B.  Jupp,  Naval  Judge  Advocate,  contra. 

Lobingier,  J.: 

The  accused,  an  enlisted  man  in  the  United  States  Navy, 
is  charged  in  this  cause  with 

"the  crime  of  Assault:  in  that  the  said  H.  C.  Sandage,  on  or  about 
the  27th  day  of  October,  1916,  at  Shanghai,  in  the  Republic  of 
China,  and  within  the  jurisdiction  of  said  Court,  did,  without  just 
cause  or  excuse  assault  one,  Tsau  Tsung  Chun,  a  citizen  of  the 
Republic  of  China,  by  striking  said  Tsau  Tsung  Chun  with  a  glass 
jar  or  bottle  and  thereby  injuring  him." 

The  injury  suffered  by  the  complaining  witness  was  a 
very  serious  one — no  less  than  the  loss  of  his  right  eye — 
and  the  circumstances  under  which  he  lost  it  are  prac- 
tically undisputed  except  as  to  the  identity  of  the  assailant. 
The  affair  occurred  at  an  exchange  shop  and  originated  in 
a  dispute  over  the  amount  which  the  assailant  was  to 
receive  in  exchange  for  what  the  prosecution's  witnesses 
call  "a  discount  dollar."  The  complaining  witness  was  an 
assistant  in  the  shop  and  his  employer  and  a  relative  of 
the  latter  who  says  he  was  visiting  there,  all  testify  that 
the  assailant  seized  a  glass  jar  from  the  counter  and  struck 
the  complaining  witness  in  the  face,  thus  causing  the  loss 
of  the  eye. 


UNITED  STATES  V.  SANDAGE,  JAN.  25,  1917.  635 

The  accused  pleaded  not  guilty  and  on  the  trial  testified 
that  he  was  not  present  at  the  time  of  the  assault.  The 
other  witnesses  were  all  agreed  that  the  assailant  was  a  blue 
jacket  but  not  all  were  agreed  that  defendant  was  the  one. 
Since  the  trial  the  Prosecuting  Attorney  has  found  another 
party  who  claims  to  have  been  an  eye  witness  of  the  affair 
and  who  makes  affidavit  that 

"I  have  on  this  day  seen  the  accused,  H.  C.  Sandage,  in  the 
American  jail,  and  am  positive  that  he  is  not  the  man  who  took  part 
in  the  fight"     *     *     *. 

Based  partly  upon  this  affidavit  the  Prosecuting  Attorney 
now  files  a  motion  for  nolle  prosequi,  reciting  inter  alia: 

"from  other  testimony,  and  the  testimony  of  some  of  the  other 
witnesses  produced  by  the  prosecution,  it  would  appear  that  there 
is  a  reasonable  doubt  as  to  the  identity  of  the  United  States  blue 
jacket  who  assaulted  the  said  Tsau  Tsung  Chun  on  the  date  afore- 
said, and  that  there  is  a  reasonable  doubt  as  to  the  guilt  of  the 
accused ; 

"That  on  the  6th  day  of  January,  1917,  the  sum  of  Mexican  dollars 
Six  Hundred  and  Ninety-two  ($692.00),  United  States  gold  dollars 
Five  (G$5.00),  and  Philippine  Pesos  Five  (f*=5),  which  had  been 
subscribed  by  the  officers  and  crew  of  the  United  States  Ship 
'Brooklyn,'  was  paid  to  the  complaining  witness  as  compensation 
for  the  injury  and  damages  which  had  been  caused  by  the  said 
assault; 

"That  on  the  15th  day  of  Jainuary,  1917,  the  said  Tsau  Tsung  Chun 
filed  herein  a  statement  wherein  he  alleges  that  it  is  his  belief  that 
the  said  payment  of  said  sums  is  full  and  satisfactory  compensa- 
tion for  the  injury  which  he  had  received  and  that  by  the  said  pay- 
ment and  by  the  fact  that  the  said  H.  C.  Sandage  had  been  in  con- 
finement since  the  7th  day  of  November,  1916,  to  the  date  hereof, 
complete  justice  has  been  done  herein; 

"That  the  applicant  believes  that  after  due  diligence  and  careful 
investigation  all  the  evidence  which  is  available  which  would  tend 
to  show  that  the  accused  is  either  innocent  or  guilty  of  the  crime 
ay  charged  has  been  produced  and  shown  to  this  Honorable  Court; 

"Now  therefore  the  applicant  herein  respectfully  moves  the  Court 
that  inasmuch  as  complete  reparation  has  been  made  to  the  com- 
plaining witness  for  the  injury  and  damage  caused  by  the  assault 
herein  alleged,  and  inasmuch  as  there  is  and  appears  to  be  a  reason- 
able doubt  as  to  the  guilt  of  the  accused  of  the  crime  herein  charged, 
this  cause  be  dismissed."     *     *     * 

A  motion  for  nolle  prosequi,  after  the  trial,  is  somewhat 
unusual  but  it  is  not,  on  that  account,  irregular.     Indeed 


636  I  EXTRATERRITORIAL  CASES. 

it  may  be  presented  and  granted  even  after  verdict,'  and 
w^hile  the  Court's  consent  is  generally  required  it  is  or- 
dinarily granted  as  a  matter  of  course.-  For  v^here  the 
prosecuting  officer,  who  usually  hears  but  one  side  of  the 
cause,  and  is  certainly  not  biased  in  favor  of  the  accused, 
reaches  the  conclusion  that  there  is  a  reasonable  doubt 
of  the  accused's  guilt,  it  is  hardly  ever  likely  that  the 
Court  will  find  otherwise. 

In  this  cause  there  is  the  additional  circumstance  that 
the  complaining  witness  has  been  reimbursed  far  beyond 
his  expectations  and  expresses  himself  thoroly  satisfied 
with  the  result.  We  have,  therefore,  no  hesitation,  in 
following  the  usual  practice  and  granting  the  motion  tho, 
of  course,  this  will  not  preclude  further  proceedings  against 
the  real  culprit  should  he  subsequently  be  detected.  Let  a 
Nolle  Prosequi  be  entered :  and  the  accused  be  discharged 
from  custody  with  costs  de  officio. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Karl  Schnabel  &  Carl  Otto  Gaumer,  Co-partners  under 
the  name  and  style  of  Schnabel,  Gaumer  &  Co.,  Plain- 
tiffs, v.  Garland  Steamship  Company,  Defendant. 

[Cause   No.   563;   filed  March   7,   1917.] 

ON  MOTION  TO  QUASH  THE  SERVICE. 

SYLLABUS. 
(By  the  Court.) 

1.  STATUTES:    SUITABILITY.     A   statute   which    in    effect   exempts    all 

corporations  from  civil   process  except  in  the  district  of  their 
origin  cannot  be  considered  "suitable"  to  conditions  in   China. 

2.  PROCESS:    Jurisdiction.     Merely  leaving  M^ith  one  party  a   sum- 

mons  intended   for   another   is   not   an   exercise   of  jurisdiction 
over  the  former. 

^  Encyclopedia  of  Pleading  &  Practice,  X,  563. 
Maine.     State  v.  Smith,  67  Me.,  328. 
Massachusetts.     Com.  v.  Tuck,  20  Pick.,  356. 
Vermont.     State  v.  Roe,  12  Vt.,  93. 
'  Ency.  PI.  &  Pr.,  X,  557. 


SCHNABEL  V.  STEAMSHIP  CO.,  MAR.  7,  1917.  637 

3.  Id.  :  Service.  A  corporation  which  selects  an  agent  in  this  juris- 
diction is  bound  by  a  proper  summons  left  with  the  latter  who, 
by  accepting  the  agency,  undertakes  to  receive  and  transmit 
such  summons. 

Joseph  W.  Rice,  Esq.,  for  the  motion. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  contra. 


LOBINGIER,  J.: 

This  is  a  motion  to  quash  or  vacate  the  service  of  sum- 
mons in  the  cause  before  us  on  the  follow^ing  grounds: 

"First:  Because  the  return  of  the  marshal  on  said  writ  purports 
to  show  service  on  the  defendant  had  by  serving  said  writ  on  the 
Agent  only  of  the  defendant. 

"Second:  Because  it  appears  from  the  said  return  of  the  marshal 
on  said  writ,  and  the  petition  attached  thereto,  that  the  said  service 
was  attempted  to  be  made,  and  purports  to  be  made,  thru  and 
on  the  British-American  Tobacco  Company,  Limited,  a  British  cor- 
poration, as  agent  for  the  defendant,  and  this  Court  having  no  juris- 
diction or  authority  over  baid  British- American  Tobacco  Company, 
Limited,  said  service  is  null  and  void." 

The  Marshal's  return  reads  as  follow^s: 

"I  hereby  certify  that  I  received  the  within  writ  on  the  25th  day 
of  January,  1917,  and  that  on  the  26th  day  of  January,  1917  at 
11  o'clock  forenoon,  I  personally  served  the  writ  upon  the  Garland 
Steamship  Company  by  showing  the  original  and  delivering  a  copy 
of  the  writ  and  a  copy  of  the  petition  filed  in  the  within  entitled 
action  to  Samuel  Tx'umper,  attorney  in  fact  and  principal  represent- 
ative in  Shanghai  of  the  British-American  Tobacco  Company,  Ltd., 
Agents   for  the   Garland   Steamship   Company.' 

Counsel  presenting  the  motion  relies  in  support  of  the 
first  ground  mainly  upon  a  statute  ^  w^hich  provides : 

"no  person  shall  be  arrested  in  one  district  for  trial  in  another 
in  any  civil  action  before  a  circuit  or  district  court;  and  no  civil 
suit  shall  be  brought  before  either  of  said  courts  against  any  person 
by  any  original  process  or  proceeding  in  any  other  district  than 
that  whereof  he  is  an  inhabitant;  but  where  the  jurisdiction  is  founded 
only  on  the  fact  that  the  action  is  between  citizens  of  different 
States,  suit  shall  be  brought  only  in  the  district  of  the  residence  of 
either  the  plaintiff  or  the  defendant." 


'Act  of   March   3,    1887,   Sess.    II,   24   U.   S.    Stats,   at   Large,   Ch. 
373,  sec.  1. 


538  I  EXTRATERRITORIAL  CASES. 

But  we  have  already  held  -  that  the  jurisdiction  of  this 
court  is  not  dependent  upon  the  residence  of  the  parties, 
and  the  above  provision  is  wholly  inconsistent  with  the 
paragraphs  of  the  Court  Regulations  of  1897,  which  prevail 
here  even  over  acts  of  Congress.^ 

Besides  only  such  "laws  of  the  United  States"  are  ex- 
tended here  as  are  "suitable"  and  "necessary  to  execute 
such  treaties"  *  and  we  do  not  see  that  this  is  either.  To 
hold  that  no  corporation  can  be  sued  here  unless  it  is  an 
"inhabitant" — i.  e.,  was  organized  here  ■' — would  in  effect 
exempt  all  corporations  from  the  service  of  process,  for 
no  American  concern  has  yet  been  incorporated  in  China, 
and  a  statute  which  would  entail  such  consequences  is  not, 
in  our  judgment,  "suitable"  to  the  situation  here  and  much 
less  "necessary  to  execute  the  treaties."  Far  more  adapted 
to  our  conditions,  we  think,  is  that  latest  expression  of 
Congress"  on  the  subject  under  which  the  service  assailed 
seems  to  have  been  made;  and  which  may  be  applied  here 
provisionally  at  least:" 

"In  actions  against  foreign  corporations  doing  business  in  the  Dis- 
trict all  process  may  be  served  on  the  agent  of  such  corporation 
or  person  conducting  its  business,  or,  in  case  he  is  absent  and  can 
not  be  found,  by  leaving  a  copy  at  the  principal  place  of  business 
in  the  District,  or,  if  there  be  no  such  place  of  business,  by  leaving 
the  same  at  the  place  of  business  or  residence  of  such  agent  in  said 
District,  and  such  service  shall  be  effectual  to  bring  the  corporation 
before  the  Court." 

We  are  unable  to  attach  much  weight  to  the  opinion,  cited 
by  counsel,  of  a  claim  examiner  of  the  Department  of  State, 
and  written  about  a  half  century  ago  with  reference  to  a 
case  against  a  corporation  in  a  consular  court  in  Japan 

"that  the  presence  at  Kanagawa  of  an  agent  of  the  steamship  com- 
pany did  not  make  the  corporation,  which  had  its  legal  seat  in  New 


^  Everett  v.  Swayne  &  Hoyt,  ante,  p.  600. 

'  U.  S.  V.  Engelbracht,  ante,  p.  169. 

*  U.  S.  Rev.  Stats.,  sec.  4086. 

'  Shaw  V.  Quincey  Mining  Company,  145  U.  S.,  444,  36  L.  ed.,  768. 

"Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854  (District  of  Columbia  Code),  sec.  1537.  Cf.  Act  of 
Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large,  Ch.  786, 
Tit.  II,  sec.  46. 

'  Biddle  v.  U.  S.,  ante,  p.  120. 


SCHNABEL  V.  STEAMSHIP  CO.,  MAR.  7,  1917.  639 

York,  an  inhabitant  or  sojourner  in  the  consular  district  so  as  to 
give  jurisdiction  of  an  action  in  personam." ' 

This  view  does  not  appear  to  have  been  adopted  even  by  the 
State  Department  itself  and  it  seems  wholly  inconsistent 
with  the  doctrine  subsequently  announced  by  the  Supreme 
Court  in  an  opinion  ^  which  contains  the  following  language : 

"The  manifest  injustice  which  would  ensue,  if  a  foreign  cor- 
poration, permitted  by  a  State  to  do  business  therein,  and  to  bring 
suits  in  its  Courts,  could  not  be  sued  in  those  courts  and  thus,  while 
allowed  the  benefits,  be  exempt  from  the  burdens,  of  the  laws  of  the 
State,  has  induced  many  States  to  provide  by  statute  that  a  foreign 
corporation  making  contracts  within  the  State  shall  appoint  an  agent 
residing  therein,  upon  whom  process  may  be  served  in  actions  upon  such 
contracts.  This  court  has  often  held  that  wherever  such  a  statute 
exists  service  upon  an  agent  so  appointed  is  sufficient  to  support 
jurisdiction  of  an  action  against  the  foreign  corporation,  either  in  the 
courts  of  the  State,  or,  when  consistent  with  the  acts  of  Congress, 
in  the  courts  of  the  United  States  held  within  the  States;  but  it  has 
never  held  the  existence  of  such  a  statute  to  be  essential  to  the  juris- 
diction of  the  Circuit  Courts  of  the  United  States." 

II. 

The  objection  that  the  service  is  "void"  because  this 
Court  has  "no  jurisdiction  or  authority  over  said  British- 
American  Tobacco  Company,  a  British  corporation"  upon 
which  "as  agent  for  the  defendant"  the  service  was  made, 
involves,  we  think,  a  misconception  of  the  nature  of  such 
service  as  well  as  of  jurisdiction.  The  latter  "has  often 
been  defined  by  the  Supreme  Court  as  the  power  to  hear 
and  determine;""  but  clearly  this  court  did  not  exercise, 
nor  attempt  to  exercise,  any  such  power  over  said  agent 
merely  by  authorizing. an  officer  to  leave  with  said  agent 
a  paper  which  at  most  notified  its  principal  to  appear.  We 
doubt  if  this  was  even  an  exercise  of  jurisdiction  over  the 

*  Moore,  International  Law  Digest,  II,  p.  602. 

°  Barrow  Steamship  Company  v.  Kane,  170  U.  S.,  100,  42  L.  ed., 
964.  Cf.  the  opinion  of  Lowell,  J.,  in  Hayden  v.  Androscoggin  Mills, 
1  Fed.,  93  that  "a  trading  corporation  may  be  said  to  be  personally 
present  for  the  purposes  of  an  action  wherever  it  has  an  established 
place  of  trade.  This  was  so  decided  in  England  on  principle,  and 
as  a  new  question,  as  late  as  the  year  1872.  Newby  v.  Von  Oppen, 
L.  R.  7  Q.  B.,  293."     See  also  Everett  v.  Swayne  &  Hoyt,  ante,  p.  600. 

"LeRoy  v.  Clayton,  2  Sawy.,  493,  15  Fed.  Cas.,  358,  360,  citing 
Grignon's  Lessees  v.  Astor,  2  How.  (U.  S.),  319,  11  L.  ed.,  283. 


540  I   EXTRATERRITORIAL   CASES. 

defendant,  for  such  a  service  is  merely  one  of  the  steps 
by  which  jurisdiction  is  acquired  ^'  and  it  could  hardly 
be  exercised  before  that.  Besides  the  service  of  a  summons 
which  merely  notifies  a  party  to  appear  is  a  very  different 
act  from  the  service  of  criminal  process,  like  a  warrant  of 
arrest,  or  even  of  certain  civil  process  like  a  subpoena  or 
an  attachment  of  property.  The  execution  of  such  writs 
might  constitute  an  exercise  of  jurisdiction  without  im- 
puting that  character  to  the  mere  leaving  of  a  notice  direct- 
ing a  party  to  appear. 

The  suggestion  that  the  agent  might  not  have  forwarded 
the  summons  to  defendant  is  one  for  the  latter  to  consider 
for  it  alone  must  accept  the  consequences.  In  effect  the 
law  says  to  it:  When  you  select  an  agent  in  this  jurisdic- 
tion you  thereby  designate  one  with  whom  a  summons  for 
you  may  be  left  and  his  failure  to  deliver  it  will  not  relieve 
you.  Of  course  this  Court  will  not  undertake  to  punish  a 
foreign  agent  for  such  dereliction,  but  it  must,  nevertheless, 
hold  the  defendant  responsible  for  its  own  selection. 

On  the  other  hand  to  the  further  suggestion  that  the 
Marshal  commits  a  trespass  by  entering  the  premises  of  an 
agent  of  another  nationality  in  order  to  leave  the  summons, 
we  think  it  sufficient  to  say  that  such  entrance  is  invited 
when  the  owner  of  i\\Q  premises  accepts  agency  which 
includes  the  transmission  of  process.  Much  less  than  that 
constitutes  an  implied  license  to  enter. ^- 

The  whole  arrangement  here  is  analogous  to  that  by 
which  lawyers  of  other  nationalities  are  permitted  to  prac- 
tice in  this  Court.  They  then  become  amenable  to  its  rules. 
If  an  American  litigant  employs  them  he  is  bound  by  their 
acts  and  notice  to  the  attorney  is  notice  to  him. 

In  disposing  of  this  motion  we  have  considered  the  pe- 
tition as  well  as  the  return;  both  because  the  former  was 
served  with  the  writ  and  may  therefore  be  treated  as  a 
part  thereof  and  because  only  by  including  the  petition 
do  the  questions  presented  properly  appear.     For  the  re- 


"  Robertson  v.  State,  109  Ind.,  79,  10  N.  E.,  582,  citing  Herman  on 
Estoppel,  sec.  69. 
"  Cyc,  XXV,  642. 


WONG  VUN  RUNG  V.  MORSE,  MAR.  10,  1917.  641 

turn  alone  fails  to  show  that  the  agent  is  a  British  corpora- 
tion or  even  that  the  defendant  is  a  corporation. 

Finding  both  of  its  grounds  insufficient  the  motion  to 
quash  is 

OVERRULED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Wong  Vun  Kung,  Plaintiff,  v.  Gordon  S.  Morse,  Defendant. 

[Cause  No.  541;  filed  March   10,   1917.] 

SYLLABUS. 

(By  the  Court.) 

1.  PUBLIC   POLICY.     An   agreement  having  for  its  object  an   attack 

on  the  peace  or  sovereignty  of  a  friendly  Power  is  unenforcible 
as  against   any   of   the    parties   thereto. 

2.  Id.  :  Recovering  Payments.     But  money  entrusted  by  one  of  said 

parties  to  an   agent  to  be  paid   on   such   contract  may  be   re- 
covered back  before  payment. 

3.  PARTIES:    JOINDER.     In    an    action    against    the    guarantor    of    a 

promissory  note  it  is  not  necessary  to  join  the  principal  espe- 
cially if  he  is  in  another  jurisdiction. 

Messrs.  Jernigan  &  Fessenden,  by  Mr.  Fessenden,  for 
plaintiff. 

Messrs.  Fleming  &  Davies,  by  Mr.  Flemirig,  for  defendant. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  on  two  promissory  notes, 
for  amounts  aggregating  $15,000  Mexican,  executed  by  one 
A.  M.  Baldwin  but  guaranteed  by  defendant.  The  cause  is 
submitted  on  the  pleadings,  the  petition  containing  a  copy 
of  the  notes  and  the  usual  averments  of  nonpayment,  all 
of  which  are  admitted  by  the  answer  which  alleges : 

"that  prior  to  the  date,  execution  and  delivery  of  the  promissory 
notes  mentioned  in  the  petition  herein  the  said  plaintiff  entered  into 
an  agreement  vi^ith  certain  persons  whose  names  are  to  this  defendant 
unknown  for  the  purchase  of  firearms  to  be  used  in  armed  rebellion 
against  the  Government  of  the  Republic  of  China  and  that  as  a  part 
of  the  same  transaction  one  A.  M.  Baldwin,  the  maker  of  said  notes, 
was  induced  by  the  said  plaintiff  and  others   to  act   as   depositary 

14008  O.  W. 41 


642  I  EXTRATERRITORIAL  CASES. 

of  the  funds  to  be  used  as  the  consideration  for  said  sale  of  firearms 
for  the  purposes  aforesaid;  and  as  an  agent  in  paying  the  same  over 
to  the  vendors  of  such  firearms;  and  that  the  said  A.  M.  Baldwin 
was  then  fully  informed  of  the  purpose  of  such  deposit  and  pay- 
ment and  the  uses  to  which  said  firearms  were  to  be  put;  that  the 
promissory  notes  mentioned  in  the  petition  herein  were  given  by  the 
said  Baldwin  to  the  plaintiff  in  an  accounting  between  the  said  plain- 
tiff and  the  said  Baldwin  in  connection  with  the  transaction  afore- 
said." 

The  replication  avers  that  the  guarantor 

"was  not  a  party  to  any  contract  for  the  purchase  of  firearms  set 
forth  in  said  answer  and  that  notwithstanding  any  of  the  matters 
set  forth  in  defendant's  answer  the  said  promissory  notes  are  not 
illegal,"  etc. 

It  is  a  well-settled  principle  of  American  law  that  an 
agreement  having  for  its  object  an  attack  on  the  peace 
or  sovereignty  of  a  friendly  power  is  contrary  to  public 
policy  and  unenforcible.^  If,  therefore,  plaintiff  were  seek- 
ing to  recover  from  the  other  party  thereto  instalments 
advanced  on  the  contract  set  forth  in  the  answer  the  ques- 
tion could  easily  be  resolved.  But  the  replication's  aver- 
ment that  defendant's  principal  "was  not  a  party  to  any 
(such)  contract"  is  undenied  and  if  either  is  to  be  absolved 
from  his  written  obligation  it  must  be  upon  the  averments 
that  the  principal  was  "induced  to  act  as  depositary  of  the 
funds,  to  be  used  as  the  consideration  for  said  sale  of 
firearms  *  *  *  and  as  an  agent  in  paying  the  same 
over  to  the  vendors;"  that  he  "was  then  fully  informed 
of  the  purpose  of  such  deposit"  and  that  the  notes  in  suit 
were  given  by  him  "in  an  accounting  between  the  said 
plaintiff  and  the  said  Baldwin  in  connection  with  the  trans- 
action aforesaid." 

A  line  of  English  decisions,  originating  in  the  eighteenth 
century  and  generally  followed  in  America,  permits  recovery 
by  the  principal  from  his  agent,  of  money  in  the  latter's 
hands  for  payment  on  an  illegal  agreement  to  which  he 
was  not  a  party.     In  the  first  -  of  these  cases  where  the 

'Kennett  v.  Chambers,  14  How.  (U.  S.),  38,  14  L.  ed.,  316,  relative 
to  purchase  of  arms  for  use  against  Mexico.  Cf.  Toeg  &  Read  v. 
Suffert,  ante,  p.  112. 

=  Tenant  v.  Elliot,  1  Bos.  &  Pul.,  3  (1797). 


WONG  VUN  KUNG  V.  MORSE,  MAR.  10,  1917.  643 

insured  and  another  had  entered  into  an  illegal  agreement 
regarding  insurance,  the  insurer,  after  loss,  had  paid  the 
proceeds  to  a  third  party  for  the  insured's  benefit.  The 
illegality  of  the  agreement  was  held  not  to  justify  the  de- 
positary in  retaining  the  money  as  against  the  claims  of  the 
insured. 

In  the  year  following  a  similar  case "  came  before  the 
same  court  and  the  Lord  Chief  Justice  (Eyre)  said: 

"The  case  therefore  is  brought  to  this,  that  the  money  is  got  into 
the  hands  of  a  person  who  was  not  a  party  to  the  contract,  who  has 
no  pretence  to  retain  it,  and  to  whom  the  law  could  not  give  it  by 
rescinding  the  contract.  Tho  the  court  will  not  suffer  a  party  to 
demand  a  sum  of  money  in  order  to  fulfil  an  illegal  contract,  yet 
there  is  no  reason  why  the  money  in  this  case  should  not  be  recovered 
notwithstanding  the  original  contract  was  void." 

Both  of  these  cases  have  been  cited  with  approval  by 
the  Federal  Supreme  Court  "*  and  that  eminent  tribunal  has 
commented  on  the  first  case  as  follows: 

"In  such  case  clearly  the  defendant  had  nothing  whatever  to  do 
with  the  illegality  of  the  original  contract.  He  received  the  money 
to  be  paid  to  another,  and  when  he  received  it  for  that  purpose  he 
promised,  either  expressly  or  by  implication  arising  from  the  facts, 
that  he  would  deliver  the  money  to  the  plaintiff,  and  when  he  refused 
to  do  it  the  plaintiff  could  recover  upon  this  express  or  implied  con- 
tract, without  resorting  in  any  manner  to  the  original  contract  be- 
tween himself  and  another,  which  in  its  nature  was  illegal,  but  which 
the  defendant  was   in  nowise  concerned  with." " 

The  Supreme  Court  of  Pennsylvania  at  an  early  day 
applied  the  principle  to  the  familiar  case  of  illegal  wagers 
and  authorized  recovery  from  the  stakeholder  altho 

"To  the  act  of  wagering  on  an  election,  the  act  of  assembly  not 
only  annexes  a  penalty,  but  in  terms  declares  the  contract  to  be 
void." " 


'Farmer  v.  Russell,  1  Bos.  &  Pul.,  295    (1798). 

'McBlair  v.  Gibbes,  17  How.,  232,  15  L.  ed.,  132  (1854);  Brooks. 
V.  Martin,  2  Wall.,  70,  17  L.  ed.,  732;  Armstrong  v.  American  Ex- 
change Nat.  Bank,  133  U.  S.,  433,  33  L.  ed.,  747,  10  Sup.  Ct.  Rep.,  450. 

'  McMullen  v.  Hoffman,  174  U.  S.,  639,  658,  43  L.  ed.,  1117,  19  Sup. 
Ct.  Rep.,  839,  affirming  83  Fed.,  372. 

•McAllister  v.  Hoffman,  16  S.  &  R.,  147  (1827).  Cf.  Hastelow  v. 
Jackson,  8  B  &   C,  221. 


644  I   EXTRATERRITORIAL  CASES. 

Shortly  afterwards  the  highest  court  of  Massachusetts 
allowed  the  beneficiaries  of  a  fraudulent  conveyance,  void  as 
against  creditors,  to  recover  the  sequestered  property  from 
one  who  had  agreed  to  hold  it  for  them  on  the  ground 

"that  whatever  fraud  there  was  in  the  original  transaction,  it  was 
between  other  parties,  and  in  which  the  plaintiffs  did  not  partici- 
pate." '• 

On  upholding  a  bill  in  equity  to  recover  money  paid  a 
broker  for  a  lottery'  ticket  the  Connecticut  court  '^  said : 

"if  the  cause  of  action  be  unconnected  with  the  illegal  act,  and  is 
founded  upon  a  distinct  and  collateral  consideration,  it  will  not  be 
affected  by  their  former   unlawful   conduct.^     *     *     m= 

We  do  not  admit  the  claim  of  the  defendants,  that  this  bill  can- 
not be  sustained,  without  proving  and  relying  upon  what  is  claimed 
to  be  the  original  illegality." 

Profits  under  a  partnership  contract,  confessedly  against 
public  policy,  were  declared  by  the  Federal  Supreme  Court 
recoverable  from  one  who  held  them. 

"Does  it  lie  in  the  mouth  of  the  partner  who  has,  by  fraudulent 
means  obtained  possession  and  control  of  all  these  funds,"  asks  Mr. 
Justice  Miller,^"  "to  refuse  to  do  equity  to  his  other  partners,  because 
of  the  wrong  originally  done  or  intended  to  the  soldier?  It  is  dif- 
ficult to  perceive  how  the  statute,  enacted  for  the  benefit  of  the  soldier, 
is  to  be  rendered  any  more  effective  by  leaving  all  this  in  the  hands 
of  Brooks,  instead  or  requiring  him  to  execute  justice  as  between 
himself  and  his  partner;  or  what  rule  of  public  morals  will  be 
weakened  by  compelling  him  to  do  so." 

In  a  case  ^^  much  like  this  where  plaintiff  was  a  party 
to  an  illegal  agreement  and  had  given  defendant  a  sum  to 


'Fairbanks  v.  Blackington,  9  Pick.,  93   (1829). 

'Phalen  v.  Clark,  19  Conn.,  421,  50  Am.  Dec,  253   (1849). 

'Citing  Booth  v.  Hodgson,  6  T.  R.,  405;  Ex  Parte  Bell,  1  Mau.  & 
Sel.,  752;  Simpson  v.  Bloss,  7  Taunt.,  246,  S.  C,  2  Eng.  Com.  L.,  346; 
Fivaz  v.  Nicholls,  2  Man.  G.  &  S.,  501,  513;  52  Eng.  Com.  L.,  500; 
Bartle  v.  Coleman,  4  Pet.,  184,  and  other  cases  cited  above. 

"  Brooks  V.  Martin,  2  Wall.,  70,  17  L.  ed.,  732,  following  Sharp  v. 
Taylor,  2  Phillips   (22  Eng.  Ch.) ,  801. 

"  Kiewert  v.  Rindskopf,  46  Wis.,  481,  32  Am.  Rep.,  731,  1  N.  W., 
163  (1839).  Cf.  Douville  v.  Merrick,  25  Wis.,  688;  Lemon  v.  Gross- 
kopf,  22  Wis.,  447,  99  Am.  Dec,  58,  and  note. 


WONG  VUN  KUNG  V.  MORSE,  MAR.  10,  1917.  645 

be  paid  thereon  to  the  other  party  the  Supreme  Court  of 
Wisconsin  held  that  any  amount  not  so  paid  could  be  re- 
covered from  the  agent.  The  following  language  from  the 
opinion  is  pertinent  here : 

"The  maxim,  in  pari  delicto,  potior  est  conditio  possidentis,  has 
application  only,  as  between  the  immediate  parties  to  an  illegal  con- 
tract, and  does  not  govern  where  the  action  is  brought  by  one  of 
such  parties  to  recover  money  received  by  a  third  party,  in  respect 
of  his  illegal  contract.     *     *     * 

"While  the  money  remains  in  the  hands  of  the  agent,  notwith- 
standing such  agent  may  have  received  it  for  the  purpose  of  using 
it  or  paying  it  out,  in  pursuance  of  an  illegal  contract  between  his 
principal  and  a  third  party,  and  has  been  directed  to  so  use  or  pay 
it,  there  appears  to  be  no  reason  for  making  an  exception  to  the  law 
governing  the  relation  between  principal  and  agent,  for  such  case, 
which  would  prevent  the  principal  from  countermanding  such  direc- 
tions, and  revoking  the  authority  of  the  agent  and  recovering  the 
money." 

A  similar  doctrine  has  been  applied  in  other  jurisdic- 
tions ^^  and  one  '^  of  the  two  cases  cited  by  defendant  on 
this  point  recognizes  it  in  the  following  language : 

"The  general  rule  is  well  settled  that  where  an  agent  receives 
money  for  the  use  of  his  principal  he  cannot  be  heard  to  say,  when 
called  to  account,  that  the  transaction  between  the  principals  out 
of  which  the  money  grew  was   illegal." 

The  doctrine  was  held  inapplicable  both  in  that  and  the 
other  case  "  cited  by  defendant  because  both  parties  were 
also  considered  parties  to  the  illegal  transaction  itself  and 
were  therefore  not  within  the  scope  of  the  doctrine.     Some 

^  MissouH.     Roselle  v.   Beckemeir,   134   Mo.,   380,  35   S.   W.,   1132. 

Montana.  Owens  v.  Davenport,  39  Mont.,  555,  104  Pac,  682,  28 
L.  R.  A.    (N.   S.),  996,  and  note. 

Tennessee.  Bendet  v.  Ellis,  120  Tenn.,  277,  111  S.  W.,  795,  18  L. 
R.  A.   (N.  S.),  114,  127  Am.  St.  Rep.,  1000. 

Texas.     Jageman  v.  Necco    (Civ.  App.),  59  S.  W.,  822. 

See  9  Cyc,  558,  note  91,  and  Ginsburg  &  Co.  v.  Zimmerman,  ante, 
p.  133. 

"Nave  V.  Wilson  (12  Ind.  App.  38),  38  N.  E.,  876.  The  doctrine 
had  been  previously  recognized  in  that  jurisdiction.  See  Daniels  v. 
Barney,  22  Ind.,  207. 

"  Samuels  v.  Oliver.  130  111.,  73,  229  N.  E.,  499. 


()46  I   EXTRATERRITORIAL   CASES. 

cases  ^^  indeed  are  not  easy  to  reconcile  with  it  but  in  view 
of  its  general  acceptance  and  especially  of  its  adoption  by 
the  Federal  Supreme  Couit  we  have  no  doubt  of  our  duty 
to  apply  the  doctrine  here. 

It  being  admitted,  as  we  have  seen,  that  defendant's  prin- 
cipal was  not  a  party  to  the  illegal  transaction,  but  received 
and  held  as  a  mere  agent  the  money  to  account  for  which 
the  notes  in  suit  were  executed  we  cannot  regard  the  aver- 
ment that  these  were  given  "in  connection  with  such  trans- 
action" as  meaning  any  more  direct  connection  than  such 
agency  would  involve.     As  the  Supreme  Court  says: 

"An  obligation  will  be  enforced,  tho  indirectly  connected  with  an 
illegal  transaction,  if  it  is  supported  by  an  independent  consideration, 
so  that  the  plaintiff  does  not  require  the  aid  of  the  illegal  transaction 
to  make  out  his  case."  " 

Here  the  plaintiff  was  "able  to  make  out  his  case"  with- 
out showing  the  transaction  for  his  petition  contains  no 
mention  of  it  and  there  must  have  been  an  "independent 
consideration"  for  the  notes.  The  case  appears,  therefore, 
to  be  clearly  within  the  doctrine  of  the  authorities  above 
reviewed  and  we  must  find  that  plaintiff  is  entitled  to  re- 
cover thereon  against  the  defendant  as  guarantor.  It  was 
not  necessary  to  join  the  principal ''  especially  since  it  is 
admitted  that  he  is  not  within  the  jurisdiction.^^ 

It  is  therefore  considered  and  adjudged  that  plaintiff  have 
and  recover  from  the  defendant  the  sum  of  fifteen  thousand 

"  E.  g.,  Woodson  v.  Hopkins,  85  Miss.,  171,  70  L.  R.  A.,  645,  over- 
ruling Gilliam  v.  Brown,  43  Miss.,  641.  Cf.  Sykes  v.  Beadon,  11  Ch. 
Div.,  170,  48  L.  M.  J.  Ch.  522,  40  L.  T.  Rep.  (N.  S.),  243,  27  Wkly. 
Rep.,  464,  criticising  Sharp  v.  Taylor,  2  Phillips   (22  Eng.  Ch.),  801. 

'"  Armstrong  v.  American  Exchange  Nat.  Bank,  133  U.  S.,  433,  33 
L.  ed.,  747,  10  Sup.  Ct.  Rep.,  450,  citing  Armstrong  v.  Toler,  11  Wheat. 
(U.  S.),  258,  6  L.  ed.,  468;  Faikney  v.  Reynous,  4  Burrow,  2069;  Petrie 
V.  Hannay,  3  T.  R.,  418;  Farmer  v.  Russell,  1  B.  &  P.,  296;  Planters' 
Bank  v.  Union  Bank,  16  Wall.,  483,  21  L.  ed.,  473;  McBlair  v.  Gibbes, 
17  How.,  232,  236,  15  L.  ed.,  132;  Brooks  v.  Martin,  2  Wall.,  70,  17  L. 
ed.,  732;  Bly  v.  Bank,  79  Pa.  St.,  453. 

"Cyc,  XX,  1450. 

'^Id.,  1455. 


IN  RE  BONNELL'S  WILL,  MAR.  10,  1917.        647 

dollars  (15,000)  Mexican  currency,  together  with  his  costs. 
There  will  be  no  allowance  of  interest  since  the  notes  ex- 
pressly except  it. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Cornelia  L.  Bonnell's  Will. 

[Cause  No.  572;  filed  March  10,  1917.] 
SYLLABUS. 

(By  the  Court.) 

I.WILLS:  Place  of  Subscription.  Where  the  signature  erf  the  tes- 
tator appears  in  the  last  clause  of  the  will  instead  of  at  the 
end  the  instrument  is  not  invalidated  thereby. 

2.  Id.  :  Witnesses.     Nor  is  it  fatal  to  such  instrument  that  one  of 

the   subscribing  witnesses,   in   no   way  benefiting  therefrom,   is 
named  executrix. 

3.  Id.:  Preparation.     The  importance  of  care,  and  of  securing  expert 

assistance  in  the  preparation  of  wills,  emphasized. 

Lobingier,  J.: 

There  is  presented  for  probate  in  this  proceeding  an 
instrument  purporting  to  be  the  last  will  and  testament 
of  the  above  named  deceased.  The  instrument  is  a  printed 
form  with  blanks  filled  in  and  seems  to  be  regular  except 
that  the  signature  of  the  testator  does  not  appear  at  the  end. 
Instead,  however,  the  last  clause  reads  as  follows : 

"In  witness  whereof,  I,  the  said  Cornelia  Leavenworth  Bonnell, 
have  to  this  my  Last  Will  and  Testament  set  my  hand  the  Fourth 
day  of  February  in  the  year  of  our  Lord  One  Thousand  Nine  Hun- 
dred and  One." 

According  to  the  testimony  the  name  was  inserted  in  said 
clause  by  the  testator  herself.  It  further  appears  that 
the  blank  was  procured  at  her  request  by  one  of  the  wit- 
nesses, that  she  asked  them  to  attest  it,  and  showed  her  in- 
tention to  make  it  her  will.  The  question  arises  whether 
its  validity  is  affected  by  the  position  of  the  signature.     On 


648  I  EXTRATERRITORIAL  CASES. 

this  point  the  law  is  stated  in  a  work  of  recognized  authority 
as  follows: 

"Where  the  statute  relating  to  signing  requires  no  more  than 
the  statute  of  frauds — merely  when  the  will  shall  be  in  writing 
and  be  signed,  it  is  immaterial  where  the  testator's  signature  was 
placed,  if  it  was  placed  there  with  the  intention  of  authenticating 
the  instrument."  ^ 

Accordingly  it  has  been  held  that  a  will  is  not  invalid  even 
tho  the  signature  of  the  testator  appears  only  at  the  begin- 
ning 2  or  in  3  or  after  *  the  attestation  clause. 

Acts  of  Parliament  ■'  and  of  certain  American  state  leg- 
islatures ^  require  the  signature  of  the  testator  to  appear 
at  the  end  of  the  will ;  but  no  such  legislation  is  in  force 
here,  the  Acts  of  Congress  merely  providing  that  the  in- 
strument be  "signed  by  the  testator"  or  under  his  direction.^ 
In  the  absence  of  a  more  stringent  requirement  we  hold 
sufficient  the  signature  to  the  instrument  before  us. 

II. 

Another  question  arises  from  the  fact  that  the  one  named 
in  the  will  as  executrix  is  also  a  subscribing  witness.  She 
is  not,  however,  a  beneficiary  under  the  instrument  nor 
does  it  appear  that  she  is  to  receive  any  compensation  as 


^Cyc,   XL,   1104,   1105. 

'England.     Le  Mayne  v.  Stanley,  3  Lev.,  1,  83  Eng.  Reprint,  545- 

AlabanM.     Armstrong  v.  Armstrong,  29  Ala.,  538. 

New  York.     Watts  v.   Public  Administrator,  4  Wend.,  168. 

Vermont.     Adams  v.  Field,  21  Vt.,  256. 

Texas.     Lawson  v.  Dawson,  21  Tex.  Civ.  App.,  361,  53  S.  W.,  64. 

'Matter  of  Acker,   5   Dem.  Surr.    (N.  Y.),  19. 

*  Hallowell  v.  Hallowell,  88  Ind.  251. 

°  Lord  St.  Leonard's  Act,  15  &  16  Vict.  c.  24. 

"California.  Civil  Code,  sec.  1276  (from  N.  Y.)  ;  In  re  Seaman's 
Estate  146  Cal.,  455,  10  Prob.  Rep.  Ann.,  255,  80  Pac,  700. 

Kentucky.  Statutes  (1903),  sees.  468,  4288;  Ward  v.  Putnam,  119 
Ky.,  889,  85  S.  W.,  179,  7  Ky.  L.  Rep.,  367. 

New  York.  2  Rev.  Stats.,  p.  63,  sec.  40  (from  Eng.)  ;  In  re  Con- 
way, 124,  N.  Y.,  455,  11  L.  R.  A.,  796,  26  N.  E.,  1028. 

'  Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854  (District  of  Columbia  Code),  sec.  1626;  Act  of  June 
6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large,  Ch.  726,  Tit.  Ill,  sec. 
138  (Alaska  Compiled  Laws,  sec.  564). 


IN  RE  BONNELL'S  WILL,  MAR.  10,  1917,       649 

executrix.  In  such  cases  the  almost  uniform  current  of 
authority  is  to  the  effect  that  the  same  person  may  be  both 
subscribing  witness  and  executor.*  In  Massachusetts  ^  it  is 
held  that  the  executor  is  not  a  competent  witness  after  ac- 
cepting the  trust;  but  the  will  is  not  invalidated  by  his 
previous  attestation. 

But  while  the  informalities  above  mentioned  are  not  fatal 
we  are  far  from  commending  them  as  examples  to  be  fol- 
lowed and,  in  view  of  many  such  defects  in  similar  instru- 
ments presented  to  this  Court  for  probate,  we  feel  con- 
strained to  call  the  attention  of  our  nationals  generally  to  the 
importance  of  greater  care  in  such  matters.  From  a  legal 
standpoint  the  execution  of  a  will  is  one  of  the  most  im- 
portant acts  in  the  course  of  one's  life.  For  not  only  does 
it  dispose  of  the  accumulations  of  a  lifetime  but  its  con- 
sequences may  reach  far  beyond  and  affect  the  title  to  prop- 
erty and  the  interests  of  individuals  for  an  indefinite 
period.  Necessarily  too,  the  technical  requirements  are 
matters  of  expert  knowledge  and  only  those  possessing  it 
should  be  entrusted  with  the  task  of  drafting  such  in- 
struments. 

We  find  from  the  evidence: 

1.  That  Cornelia  Leavenworth  Bonnell  died  on  October  12,  1916, 
at  Shanghai,  China,  where  she  had  long  resided  but  that  she  was 
a  citizen  of  the  United  States. 

2.  That  she  left  property  appearing  to  be  of  greater  value  than 
$500  U.  S,  currency. 

'  England.  Lowe  v.  Joliffe,  1  W.  Blackstone,  365 ;  Phipps  v.  Pitcher, 
6  Taunt.,  220;  Bettison  v.  Brompey,  12  East,  250;  Goodtitle  v.  Welfred, 
Douglass,  139. 

California.     Panaud  v.  Jones,  1  Cal.,  488,  506. 

Connecticut.     Hawley  v.  Brown,  1  Root,  494. 

New  Jersey.     Snedekers  v.  Allen,  2  N.  J.  L.,  32,  41. 

Such  is  also  the  Spanish  Law.     Febrero,  Mejicano,  II,  p.  6,  sec.  8. 

In  Williams  v.  Wells,  1  Hayw.  &  H.  (D.  C),  116,  29  Fed.  Cas., 
1417,  the  Circuit  court  admitted  to  probate  a  will  which  named  the 
subscribing  witnesses  as  guardians  of  testator's  children.  This  ac- 
tion was  reversed  on  appeal  but  no  authorities  were  cited  and  it 
would  seem  that  the  guardians  were  to  be  compensated. 

°  Sears  v.  Dillingham,  12  Mass.,  358.  Cf.  Durant  v.  Starr,  11  Mass., 
527. 


(350  I   EXTRATERRITORIAL   CASES. 

3.  That  the  instrument  attached  to  the  petition  is  her  last  will 
and  testament  and  entitled  to  probate  as  much. 

It  is  accordingly  admitted  to  probate  and  Letters  Testamentary 
are  directed  to  issue  to  the  party  named  therein  as  executrix,  upon 
her  taking  the  oath  and  executing  a  proper  bond  in  double  the  value 
of  the  assets  as  required  by  law;  but  with  the  condition  that,  hav- 
ing been  a  witness  to  the  will,  she  shall  receive  no  compensation  for 
her  services  as  executrix. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  John  H.  Dadisman's  Will. 

[Cause  No.  570;  filed  March  12,  1917.] 
SYLLABUS. 

(By  the   Court.) 

1.  EVIDENCE:    DIRECT  PROOF  OF  DEATH  is  not  required;  circumstantial 

evidence  is  sufficient  and  in  a  civil  case  only  a  preponderance 
is  necessary. 

2.  Id.  :  Presumptions.     There  is  a  presumption  of  the  continuance  of 

life  for  seven  years  after  one's  disappearance;  but  this  may 
be  overcome  by  the  presumption  of  good  faith  and  innocent 
conduct. 

3.  Id.  :  Weight.     Evidence  reviewed  and  found  sufficient  to  justify  a 

finding  that  the  testator  is  dead. 

Stirling  Fessenden,  Esq.,  for  the  proponent. 

LOBINGIER,  J.: 

The  petition  in  this  proceeding  contains  the  usual  aver- 
ments for  the  probate  of  a  will  and  inter  alia  that  the 
testator  "died  in  China  on  or  about  the  9th  day  of  February, 
1917."  There  is  no  direct  proof  of  death,  i.  e.,  no  one  has 
been  found  who  saw  the  testator  die  or  dead  but  that  is 
not  necessary;  circumstantial  evidence  will  suffice  to  prove 
that  as  any  other  fact,^  and  in  a  civil  case  like  ti-.is  a 
preponderance  of  evidence  is  sufficient.  Nor  is  it  claimed 
that  the  testator  has  been  absent  for  a  period  approaching 
that  required  in  order  to  raise  the  presumption  of  death, 
which  is  seven  years."     But  again  such  absence  is  not  nec- 

*Cyc.,  XIII,  305;  Boyd  v.  N.  E.  Mut.  L.  Ins.  Co.,  34  La.  Ann.,  845. 
=  Cyc.,  XIII,  298. 


IN  RE  DADISMAN'S  WILL,  MAR.   12,   1917.  651 

essaiy ;  for  the  circumstances  may  be  such  as  to  warrant  a 
finding  that  death  occurred  within  a  much  briefer  period. 
As  was  said  by  an  eminent  judge  in  a  well  reasoned  opinion : 

"The  established  presumption  of  fact  from  the  disappearance  of 
an  individual  under  ordinary  circumstances,  from  whom  his  relatives 
and  acquaintances  have  never  afterwards  heard,  is  that  he  continues 
to  live  for  seven  years  after  his  disappearance.  If  this  presumption 
was  unaffected  by  countervailing  facts,  it  would  continue  in  the 
case  at  bar  until  August  22,  1899;  but  this  presumption  of  fact  is 
not  conclusive.  It  may  be  overcome,  not  only  when  the  testimony  of 
those  who  saw  the  insured  die  or  saw  his  body  after  his  death  is 
produced,  or  when  he  was  last  seen  in  a  peril  that  might  probably 
cause  his  death,  but  also  when  all  the  facts  and  circumstances  of 
the  case — the  possible  motives,  if  any,  of  the  lost  one  to  absent  and 
conceal  himself  in  view  of  approaching  failure,  disgrace,  or  punish- 
ment, his  possible  motives,  if  any,  for  returning  to  his  family  and 
occupation,  his  attachments  to  the  members  of  his  family  and  his 
friends,  his  interest  and  prospects  in  his  business  or  occupation,  and 
the  extent  of  the  unavailing  search  that  has  been  made  for  him — 
are  such  that  they  would  take  the  case  out  of  the  category  of  an 
ordinary  disappearance,  and  would  lead  the  unprejudiced  minds  of 
reasonable  men,  exercising  their  best  judgment,  guided  by  the  estab- 
lished rule  that  life  is  presumed  to  continue  seven  years  after  an 
unexplained  disappearance,  to  the  conviction  that  death  had  inter- 
vened at  an  earlier  date".' 

In  the  case  at  bar  the  testator,  who  was  a  Secretary  of  the 
Young  Men's  Christian  Association,  had,  according  to  the 
testimony,  been  suffering  from  ill  health,  including  insomnia, 
for  a  considerable  time  and  had  been  compelled  to  suspend 
his  work.  Sickness  in  his  family  and  other  troubles  appear 
to  have  preyed  upon  his  mind  and  he  was  subject  to  spells 
of  intense  depression,  so  that,  as  he  stated  to  one  of  his 
physicians  (Dr.  Peter),  ''Sometimes  I  had  to  reach  up  to 
touch  bottom." 

As  a  result  of  these,  he  confessed  to  no  less  than  three 
persons,  the  idea  of  self-destruction  had  come  to  him  and 

'  Federal.  Sanborn,  J.,  in  Northwestern  Mutl.  L.  Ins.  Co.  v.  Stevens, 
71  Fed.,  258.     See  also  Davie  v.  Briggs,  97  U.  S.,  628,  24  L.  ed.,  1084. 

Iowa.     Tisdale  v.  Conn.  Mut.  Ins.  Co.,  26  la.,  170,  96  Am.  Dec,  136. 

Louisiana.     Boyd  v.  N.  E.  Mut.  L.  Ins.  Co.,  34  La.  Ann.,  848. 

Minnesota.  State  v.  Plym,  43  Minn.,  385,  Thayer's  Cas.,  60,  45  N. 
W.,  848;  Waite  v.  Coaracy,  45  Minn.,  159,  47  N.  W.,  537. 

Nebraska.     Cox  v.  Ellsworth,  18  Neb.,  664,  26  N.  W.,  460. 


652  I   EXTRATERRITORIAL   CASES. 

SO  late  as  January  28,  less  than  two  weeks  before  his  disap- 
pearance, he  stated  to  his  wife,  referring  to  a  prospective 
journey,  that  he  had  thought  of  stepping  off  the  boat.  There 
is  also  testimony  of  insanity  in  his  family. 

Early  in  February,  he  left  with  two  companions  for  a  trip 
to  Ningpo  during  which  his  demeanor  is  described  as  quiet. 
An  incident  of  the  journey  was  a  quarrel  between  two 
Chinese,  one  of  whom  tried  to  drown.  On  the  return  trip 
he  dined  with  his  companions  but  failed  to  join  in  their 
conversation.  He  retired  to  his  cabin  (which  he  occupied 
alone)  about  9  p.  m.  and  has  not  been  seen  since.  The 
ship  reached  port  about  4  a.  m.  and,  of  the  five  foreign 
passengers,  the  testator's  companions  went  ashore  about  5 
a.  m.  and  the  other  two  about  6,  but  no  one  saw  the  tes- 
tator leave  tho  some  of  the  Chinese  crew  were  on  watch 
most  of  the  time.  Before  leaving  the  ship  one  of  his  com- 
panions went  to  testator's  cabin  and  found  it  unoccupied 
but  his  clothes  there  and  assumed  that  he  had  gone  to  the 
toilet  room.  When  he  failed  to  appear  his  effects  were  re- 
moved and  all  clothes  which  he  had  taken  with  him  were 
found  in  his  cabin  with  the  exception  of  night  wear  and  a 
sweater. 

It  is,  of  course,  possible  that  after  the  ship  docked,  the 
testator  might  have  left  it  thru  one  of  the  lower  exits; 
but  in  that  case  even  if  he  had  escaped  the  notice  of  the  crew, 
who  were  then  stirring,  and  had  gone  ashore  in  night  at- 
tire he  would  naturally  soon  have  been  observed  and  re- 
ported; or  even  if  he  had  obtained  Chinese  clothes  (and 
that  would  have  been  difficult  without  disclosure)  the  dis- 
guise could  hardly  have  been  continued  long.  In  this  land 
of  curiosity  and  rumor  such  an  incident  would  hardly  pass 
unnoticed  and  considerably  more  than  a  month  has  now 
elapsed  without  the  semblance  of  tidings.  Moreover  such 
a  course  would  imply  a  voluntary  and  premeditated  flight 
and  for  that  no  motive  has  been  suggested.  Indeed  such 
an  explanation  seems  the  most  unnatural  of  all.  As  was 
said  in  a  leading  case  *  already  cited : 

"No  greater  wrong  could  be  done  to  the  character  of  the  man  than 
to  account  for  his  absence,  even  after  the  lapse  of  a  few  short  months, 

*  Tisdale  v.  Conn.  Mut.  L.  Ins,  Co.,  26  la.,  170,  96  Am.  Dec,  136. 


IN  RE  DADISMAN'S  WILL,  MAR.  12,  1917.  653 

upon  the  ground  of  a  wanton  abandonment  of  his  family  and  friends. 
He  could  have  lived  a  good  and  useful  life  to  but  little  purpose 
if  those  vi^ho  knew  him  could  even  entertain  such  a  suspicion.  The 
reasons  that  the  evidence  above  mentioned  raises  a  presumption  of 
death  are  obvious;  absence  from  any  other  cause,  being  without 
motive  and  inconsistent  with  the  very  nature  of  the  person,  is  im- 
probable. It  is  suggested  in  argument  that  such  absence  may  be 
on  account  of  insanity.  That  may  be  possible  but  as  death  under 
such  circumstances  is  more  probable  than  insanity  in  the  absence  of 
evidence  thereof,  the  law  raises  a  presumption  of  death." 

For  while  there  is  a  presumption  of  life  there  is  also  a 
presumption  of  good  faith  and  innocent  conduct "'  and  under 
circumstances  like  those  here  proved  it  would  seem  that 

"the  presumption  of  the  continuance  of  life  mujit  yield  to  the  stronger 
presumption  of  innocence."  ° 

The  finding  of  the  trial  Judge  in  another  leading  case  ' 
whose  facts  were  closely  parallel  to  these  was : 

"I  do  not  pretend  to  assert  that  the  death  of  Clotworthy  Boyd 
has  been  demonstrated.  Indeed,  it  is  possible  that  he  still  lives  and 
is  secreting  himself.  But,  after  listening  attentively  to  the  witnesses 
and  observing  closely  their  demeanor,  I  have  come  to  the  conclusion, 
I  am  convinced,  that  Clotworthy  Boyd  met  an  untimely  end  on  the 
night  of  31st  July,  1875,  and  that  he  is  dead." 

Paraphrasing  this  language  we  are  unable  to  say  that  the 
death  of  the  testator  has  been  demonstrated  nor  is  that  nec- 
essary. But  we  are  convinced  that  all  signs  point  to  his 
having  leapt  overboard  and  drowned  at  sea  before  his  ship 
reached  port.  We  consider  the  evidence,  therefore,  suffi- 
cient to  justify  us  in  finding: 

1.  That  John  Hunter  Dadisman  was  an  American  citizen  with 
property  in  China  sufficient  to  give  this  Court  jurisdiction  in  probate 
proceedings. 

2.  That  the  instrument  attached  to  the  petition  and  presented  for 
probate  is  his  last  will  and  testament. 

3.  That  he  died  on  or  about  February  9,  1917. 

It  is  accordingly  considered  and  decreed  that  said  instrument  be 
admitted  to  probate  and  that  Letters  Testamentary  issue  to  the 
petitioner,  the  one  named  therein  as  executrix,  upon  her  taking  the 
oath  and  executing  a  bond  as  required  by  law. 

"  Gaines  v.  New  Orleans,  6  Wall.  (U.  S.) ,  642,  707-8,  18  L.  ed.,  962. 
'  State  V.  Plym,  43  Minn.,  385,  Thayer's  Cas.,  60,  45  N.  W.,  848. 
'Boyd  V.  N.  E.  Mut.  L.  Ins.  Co.,  34  La.  Ann.,  848. 


654  1   EXTRATERRITORIAL   CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Esther  Robins'  Will. 

[Cause  No.  577;  filed  April  26,  1917.] 

SYLLABUS. 
(By  the   Court.) 

WILLS.     The    Signature   of    a   testator   whose   hand    is    guided    by 
another  constitutes  a  sufficient  execution  of  a  will. 

Stirling  Fessenden,  Esq.,  for  the  proponent. 

Lobingier,  J.: 

A  petition  is  hereby  presented  for  the  admission  to 
probate  of  an  instrument  purporting  to  be  the  last  will 
and  testament  of  the  above  named  decedent.  Two  of  the 
three  subscribing  witnesses  are  called  and  their  testimony 
suffices  to  establish  the  genuineness  of  the  instrument.  The 
only  legal  question  which  appears  to  arise  at  this  time 
occurs  by  virtue  of  testimony  that  the  deceased  was  un- 
able to  write  and  that  the  attorney  who  drafted  the 
instrument  guided  her  hand  in  executing  the  same.  On 
this  point,  however,  the  law  is  well  settled: 

"The  signature  is  not  rendered  invalid  by  the  fact  that  another 
guided  the  hand  of  the  testator  when  he  signed  the  will.  Such  act 
is  the  testator's  own,  performed  with  the  assistance  of  another, 
and  not  the  act  of  another  done  under  the  authority  of  the  testator; 
and  in  order  to  uphold  the  validity  of  such  signature  it  is  not 
necessary  that  an  express  request  for  the  assistance  be  given.  It 
may  be  inferred  from  the  circumstances  of  the  case." ' 

Here  the  testimony  is  that  the  instrument  was  read  over 
to  the  decedent  before  execution  and  that  she  requested 
the  subscription. 

We  find  from  the  evidence: 

1.  That  the  instrument  offered  for  probate  was  duly  executed  by 
the  said  Esther  Robins  and  was  intended  by  her  to  be  her  last  will 
and  testament. 

2.  That  at  the  time  of  said  execution  she  was  of  sound  mind  and 
disposing  memory  and  capable  of  executing  such  an  instrument. 

3.  That  the  said  Esther  Robins  died  in  Shanghai  on  April  20,  1917, 
within  the  jurisdiction  of  this  Court. 


'  Cyc,  XL,  1104,  citing  many  cases. 


U.  S.  EX  REL.  RAVEN  V.  MCRAE,  JUNE  9,  1917.     655 

It  is  therefore  considered  and  decreed  that  the  said  instrument 
be,  and  it  hereby  is,  admitted  to  probate  as  the  last  will  and  testament 
of  Esther  Robins,  deceased  and  that  Letters  Testamentary  issue 
to  the  petitioner  who  is  the  one  named  thei'ein  as  Executrix,  upon 
her  submission  to  the  jurisdiction  of  this  Court,  taking  the  oath  and 
executing  a  proper  bond  as  required  by  law. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

United  States  Ex  Rel.  Raven  et  al.  v.  Paul  McRae, 
Acting  Clerk  of  the  United  States  Court  for 
China,  Respondent. 

[Cause  No.  586;  filed  June  9,  1917.] 

SYLLABUS, 
(By   the   Court.) 

1.  LEGISLATION:     EXTENSION:    WITHDRAWAL.     Laws    of    the    United 

States  extended  to  China  by  the  Acts  of  Congress  of  1848  and 
1860  can  be  withdrawn  only  by  a  similar  Act. 

2.  Id.  :   Delegation  of  Power.     Congress  cannot  constitutionally  del- 

egate to  a  Territorial  Legislature  power  to  withdraw  acts  thus 
extended. 

3.  Id.  :  The  Corporation  Act  of  Congress  of  March  2,  1903,  appears 

to  be  suitable  to  conditions  in  China  and  necessary  to  execute 
the  treaties,  and  consequently  extended  here  by  the  above  named 
Acts. 

4.  CORPORATIONS:   ARTICLES:   Filing:    Secretary  of  the  District. 

The  requirements  in  said  Act  of  1903  that  proposed  articles  of 
incorporation  be  filed  "in  the  office  of  the  Secretary  of  the 
District"  are  sufficiently  complied  with  here  by  filing  them 
with  the  Legation. 

5.  Id.  :    Court    Clerk.     The    further    requirement    therein    that    said 

Articles  be  filed  in  the  office  of  the  Clerk  of  the  District  Court 
is  met  by  filing  them  with  the  Clerk  of  this  Court. 

6.  Id.  :    Recording.     The  said  Clerk  is   required  to  record  only  such 

articles  as  ai'e  properly  filed  and  only  articles  which  comply 
with  the  law  are  entitled  to  be  filed. 

7.  Id.  :    Sufficiency.     Proposed    articles    of    incorporation    examined 

and  found  insufficient  to  meet  the  requirements  of  the  said  act 
of  1903. 

8.  Id.  :   Mandamus.     The  Clerk  cannot  be  compelled  by  mavdamus  to 

file  or  record  insufficient  articles. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  relators. 
Earl  B.  Rose,  Esq.,  for  respondent. 


656  I   EXTRATERRITORIAL   CASES. 

LOBINGIER,  J.: 

This  is  an  application  for  a  writ  of  mandamus  to  com- 
pel the  Acting  Clerk  of  this  Court  to  file  and  record  cer- 
tain articles  of  a  proposed  corporation  "to  carry  on  the 
business  of  banking  in  all  its  branches"  and  for  various 
other  objects  therein  declared.  The  articles  are  tendered 
under  the  Act  of  Congress  '  of  March  2,  1903,  and  the 
respondent  alleges  that  this  "is  not  now  in  force  and  effect 
within  the  jurisdiction  of  the  United  States  Court  for 
China."  It  is  conceded  that  said  Act  was  once  in  force 
here  but  it  is  contended  that  because  Congress,  about  a 
decade  later,  in  organizing  the  territory  of  Alaska,  provided 
that 

"all  laws  in  force  in  Alaska  shall  continue  in  full  force  and  effect 
until  altered,  amended,  or  repealed  by  Congress  or  by  the  legislature," ' 

and  because  said  legislature  did  enact  a  new  corporation 
law  effective  January  2,  1914,  the  Act  of  March  2,  1903, 
thereby  ceased  to  be  operative  in  China. 

We  have  not  at  hand  an  official  copy  of  the  territorial 
statute  just  mentioned  and  the  copy  furnished^  fails  to 
disclose  a  repealing  clause.  For  aught  that  appears  the 
said  statute  may  be  merely  cumulative  to  the  Act  of  Con- 
gress of  1903,  just  as  the  latter  was  itself  cumulative  to 
the  corporation  laws  of  Oregon  which  had  previously  been 
extended  to  Alaska  and  which,  it  was  held,*  continued  in 
force  despite  the  corporate  legislation  of  Congress  above 
referred  to. 

But,  assuming  that  the  legislature  of  Alaska  did  at- 
tempt to  repeal  the  Act  of  Congress  of  March  2,  1903,  we 
are  of  the  opinion  that  such  attempt  was  ineffectual  so  far 
as  this  jurisdiction  is  concerned.  For  in  the  first  place  the 
Federal  Constitution  ^  provides  that  "all  legislative  powers 
herein  granted  shall  be  vested  in  a  Congress,"  and  the  courts 


'  32  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  978,  pp.  947-952. 
'Act  of  Aug.  24,  1912,  Sess.  II,  37  U.  S.   Stats,  at  Large,  Pt.  I, 
Ch.  387,  sec.  3. 

'Synopsis  of  Laws  (1916),  20-22. 

*  Alaska  Gold  Mining  Co.  v.  Ebner,  2  Alaska,  611. 

*  Art.  I,  sec.  1. 


U.  S.  EX  REL.  RAVEN  V.  McRAE,  JUNE  9,  1917.     657 

hold  that  power  so  vested  cannot  be  delegated  to  another 
body.*^  This  attempt  to  confer  on  a  territorial  legislature 
the  poM^er  to  repeal  Acts  of  Congress  is  a  recent  departure, 
never  having  been  made,  so  far  as  we  are  able  to  ascertain, 
except  in  this  organic  act  of  Alaska  and  in  the  more  recent 
statute  extending  local  self  government  to  the  Philippines/ 
It  is  a  departure  which  has  not  yet  been  sanctioned  by 
any  judicial  decision,  which  we  have  found,  while  it  is 
contrary  to  the  doctrine  noted  above  and  supported  by 
numerous  authorities. 

But  even  were  it  permissible  to  delegate  to  a  territo- 
rial legislature  the  power  to  repeal  acts  of  Congress  for 
the  former's  own  territory,  this  would  afford  no  prece- 
dent for  the  contention  here  made.  For  if  respondent's 
position  as  to  this  point  were  correct  we  would  have  the 
strange  anomaly  of  Congress  delegating  to  a  territorial 
legislature  the  power  not  only  to  repeal  congressional 
enactments  operative  in  its  own  territory  but  also  to  legis- 
late for  residents  of  a  distant  region  like  China.  This 
would  amount  to  a  legal  and  political  monstrosity. 

Nor  is  this  a  case  where  a  law  was  passed  with  a  pro- 
vision that  it  should  remain  in  force  for  a  limited  period 
only.  The  Act  of  Congress  of  March  2,  1903,  contains 
no  such  provision;  its  duration  was  as  unlimited  as  any 
other  law.  It  is  true  that  another  act,  passed  nearly  a 
decade  later,  provided  that  all  such  laws  were  to  "con- 
tinue in  full  force  and  effect  until  altered,  amended,  or 
repealed  by  Congress  or  by  the  Legislature."  But  this 
was  not  a  repeal  nor  a  grant  of  authority  to  repeal  and 
it  would  not  become  effective,  even  as  a  limitation,  with- 
out a  delegation  *  of  legislative  power,  which,  as  we  have 
seen,  is  contrary  to  elementary  principles. 


•Am.  &  Eng.  Encyc.  of  Law  (2nd  ed.),  VI,  1028;  Cyc,  VIII,  830, 

and  cases  there  cited. 

'Act  of  August  29,  1916,  Sess.  I,  39  U.  S.  Stats,  at  Large,  Ch. 
416,  sees.  6,  7,  p.  547. 

'  As  in  the  Act  last  cited  which  provides : 

"That  the  legislative  authority  herein  provided  shall  have  power, 
when  not  inconsistent  with  this  Act,  by  due  enactment  to  amend, 
alter,  modify,  or  repeal  any  law,  civil  or  criminal,  continued  in  force 
by  this  Act  as  it  may  from  time  to  time  see  fit."      (Sec.  7.) 

14008  O.  W. 42 


658  I  EXTRATERRITORIAL  CASES. 

II. 

The  practice  of  extending  over  one  jurisdiction  laws 
originally  passed  for  another,  is  not  new  in  American 
jurisprudence.  As  early  as  1790  the  laws  of  Maryland 
and  Virginia  were  continued  in  force  over  the  respective 
portions  of  the  District  of  Columbia  which  had  been  ceded 
by  those  states.^  This  was  renewed  ^"  in  1801  and  much 
of  the  old  Maryland  statute  law  remains  in  force  in  said 
District  to  this  day  as  a  result  of  such  extension.  In  1804 
numerous  Federal  laws  were  extended  ^^  over  Louisiana  ter- 
ritory, eight  years  before  it  became  a  state.  In  1825 
Congress  extended  the  criminal  laws  of  each  state  over 
all  Federal  territory  and  property  located  within  its 
boundaries,^-  thus  making  a  violation  of  such  state  law 
"an  offense  against  the  United  States."  ^^  The  same  method 
was  not  infrequently  employed  during  the  formative 
period  of  western  America  when  new  territories  were 
created.  Thus  the  laws  of  Iowa  were  extended  over  the 
newly  formed  territory  of  Nebraska  in  1855,  while  in 
1884,  the  laws  of  Oregon  were,  as  we  have  seen,  extended 
over  Alaska.  In  1890  the  Nebraska  laws  were  extended 
over  Oklahoma  ^*  organized  in  1889,  while  the  same  act 
extended  over  the  Indian  Territory  "certain  general  laws 
of  *  *  *  Arkansas  *  *  *  not  locally  inapplicable 
or  in  conflict  with  this  act  or  with  any  law  of  Con- 
gress." ^^  etc.  The  Federal  constitution  and  "all  the  laws 
of  the  United  States  which  are  not  locally  inapplicable" 
were  extended  over  Hawaii  by  the  Act "  of  Congress  of 


•  1  U.  S.  stats,  at  Large,  130. 

'"  2  U.  S.  Stats,  at  Large,  Ch.  15,  p.  103. 

"  Id.,  Ch.  38,  sec.  7,  p.  285. 

"4  U.  S.  Stats,  at  Large,  Ch.  65,  sec.  3,  p.  115. 

"  Biddle  v.  U.  S.,  ante,  p.  120. 

"  Act  of  Congress  of  May  2,  1890,  Sess.  I,  26  U.  S.  Stats,  at  Large, 
Ch.  182,  sec.  11. 

"  Act  of  Congress  of  May  2,  1890,  Sess.  I,  26  U.  S.  Stats,  at  Large, 
Ch.  182,  sec.  31.  These  laws  were  treated  as  Acts  of  Congress  equally 
as  if  they  had  been  enacted  by  it  in  haec  verba.  In  re  Grayson,  3 
Indian  Ter.,  497   (1901). 

"31  U.  S.  Stats,  at  Large,  Ch.  339,  sec.  5,  p.  141.  It  was  not 
in  force  there  without  such  extension.  Elliott,  The  Philippines,  I, 
492. 


U.  S.  EX  REL.  RAVEN  V.  MCRAE,  JUNE  9,  1917.     659 

April  30,  1900,  and  the  Federal  Extradition  law  over  the 
Philippines  by  the  Act  ^'  of  February  9,  1903.  These  are 
but  "few  of  many  similar  instances.  Congress  was  both 
following  and  making  precedent,  therefore,  in  enacting,  as 
it  did  in  1848,  that 

*'the  line.:;  of  .'lie  United  Siafes  *  *  *  are  hereby,  so  far  as  is 
necessary  to  execute  said  treaty,  extended  over  all  citizens  of  the 
United  States  in  China  (and  over  all  others  to  the  extent  that  the 
terms  of  the  treaty  justify  or  require),  so  far  as  such  laws  are  suit- 
able to  carry  said  treaty  into  effect." ''" 

In  1860  a  more  elaborate  act  ^^  was  passed  in  which 
the  foregoing  section  was,  almost  literally,  repeated,  so 
that  it  affords  the  basis  of  American  jurisprudence  in 
China. 

III. 

Nor  was  the  phrase  *'laws  of  the  United  States"  a  new 
one  in  our  jurisprudence.  It  appears  in  the  Federal 
Constitution  (Art.  VI)  and  as  there  used  was  construed 
by  Chief  Justice  Marshall,  as  early  as  1821,  to  include  an 
act  relating  to  the  District  of  Columbia  alone.  In  re- 
jecting the  contrary  contention,  that  great  jurist  said: 

"Those  who  contend  that  acts  of  Congress,  made  in  pursuance  of 
this  power,  do  not,  like  acts  made  in  pursuance  of  other  powers, 
bind  the  nation,  ought  to  show  some  safe  and  clear  rule  which  shall 
support  this  construction,  and  prove  that  an  act  of  Congress,  *  -ff  * 
as  the  legislature  of  the  Union,  is  not  a  law  of  the  United  States,  and 
does  not  bind  them."  ^'' 

In  construing  the  statute  ^^  regulating  appeals  from  the 
Philippines,  the  Supreme  Court  declared  the  Philippine 
Tariff  Act,  which  applied  to  the  archipelago  alone,  "a 
statute  of  the  United  States."  ^^ 

'•  32  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  529,  p.  806. 

"Act  of  Congress  of  August  11,  1848,  9  U.  S.  Stats,  at  Large,  Ch. 
150,  sec.  4,  p.  276.  "The  law  was  passed  in  reference  to  this  treaty 
and  to  that  with  the  Ottoman  Porte."     Dainese  v.  Hale,  ante,  p.  35. 

''■'  12  U.  S.  Stats,  at  Large,  Ch.  179,  sec.  4,  p.  73. 

'"Cohens  v.  Virginia,  6  V^heat.  (U.  S.),  264,  424,  425,  5  L.  ed.,  257. 

"  32  U.  S.  Stats,  at  Large,  Ch.  1369,  sec.  10,  p.  695. 

''  Gsell  V.  Insular  Collector,  239  U.  S.,  93,  60  L.  ed.,  16:3,  affirming 
24  Philippine,  369,  which  in  turn  affirmed  the  decision  of  Lobingier, 
J.,  reported  in  Philippine  Law  Review,  I,  229-233. 


660  I  EXTRATERRITORIAL  CASES. 

It  is  true  that  the  phrase  "law  of  the  United  States," 
as  used  in  one  paragraph  --^  of  the  Judicial  Code  relating 
to  appeals,  has  been  construed  as  not  including  an  act  of 
Congress  for  the  extension  of  New  York  Avenue  in 
Washington.-*  But  the  ratio  decidendi  was  the  declared 
purpose  of  the  paragraph  to  limit  appeals  -■'  and  it  was 
conceded  that  the  same  phrase  in  another  paragraph  might 
be  construed  differently.-" 

In  reviewing  a  prosecution  originally  brought  in  this 
Court,  and  in  upholding  its  jurisdiction  of  such  a  crime, 
the  Court  of  Appeals  announced: 

"It  is  true,  there  is  no  general  statute  applicable  to  every  state 
in  the  Union,  making  this  an  offense  against  the  United  States; 
nor  could  there  be,  in  view  of  the  fact  that  under  our  system  of  gov- 
ernment the  right  to  punish  for  such  acts  committed  w^ithin  the 
political  jurisdiction  of  the  state  is  reserved  to  the  several  states. 
But  in  legislating  for  territory  over  which  the  United  States  exer- 
cises exclusive  legislative  jurisdiction,  Congress  has  made  the  act  of 
obtaining  money  under  false  pretenses  a  ci-ime  *  *  *  in  view  of 
the  legislation  of  Congress  to  which  we  have  referred  (the  acts  re- 
lating to  Alaska  and  the  District  of  Columbia,  and  the  statute  of  July 
7,  1898),  our  conclusion  is  that  obtaining  money  or  goods  under  false 
pretenses  is  an  offense  against  the  laws  of  the  United  States,  within 
the  meaning  of  the  statute  conferring  jurisdiction  upon  the  United 
States  Court  for  China."" 

This  is  the  doctrine  now  regularly  applied  by  this  Court 
which  has  declared  that  the 

^Sec.  250. 

""  American  Security  etc.  Co.  v.  District  of  Columbia  Comrs.,  224 
U.  S.,  491,  56  L.  ed.,  856,  32  Sup.  Ct.,  553;  Washington  etc.  R.  Co. 
V.  Downey,  236  U.  S.,  190,  59  L.  ed.,  533,  36  Sup.  Ct.,  406;  United 
Surety  Company  v.  American  Fruit  Product  Company,  238  U.  S., 
140,  59  L.  ed.,  1238,  35  Sup.  Ct.  828;  American  Security  etc.  Co.  v. 
Rudolph,  38  App.  Cas.   (D.  C),  32. 

-'  American  Security  etc.  Co.  v.  District  of  Columbia  Comrs.,  224 
U.  S.,  491,  56  L.  ed.,  856,  32  Sup.  Ct.,  553. 

■"  "Of  course  there  is  no  doubt  that  the  special  Act  of  Congress 
was  in  one  sense  a  law  of  the  United  States.  It  well  may  be  that 
it  would  fall  within  the  meaning  of  the  same  words  in  the  third 
clause  of  the  same  section;  'Cases  involving  the  constitutionality  of 
any  law  of  the  United  States.'  "  Id.  Cf.  United  Surety  Company 
v.  American  Fruit  Product  Company,  238  U.  S.,  140,  59  L.  ed.,  1238, 
35  Sup.  Ct.,  828. 

"  Biddle  v.  United  States,  ante,  p.  120. 


U.  S.  EX  REL.  RAVEN  V.  McRAE,  JUNE  9,  1917.     661 

"extension  results  quite  independently  of  the  original  purpose  of 
the  acts  themselves.  Thus  Congress  may  enact  a  law  for  a  limited 
area  .under  its  exclusive  jurisdiction,  such  as  Alaska  or  the  District 
of  Columbia;  by  its  terms  it  may  have  no  force  whatever  outside  of 
such  area;  but  if  it  is  'necessary  to  execute  such  treaties'  (with 
China)  and  'suitable  to  carry  the  same  into  effect,'  it  becomes  oper- 
ative here  by  virtue  of  the  act  of  1860  above  quoted.  Such  we 
understand  to  be  the  doctrine  announced  by  the  Court  of  Appeals."  ^ 

In  making  such  extensions  Congress  has  expressly 
adopted  the  principle  that  an  extension  by  it  precludes 
abrogation  by  any  other  body.  Thus  in  extending  over 
Federal  territory  the  laws  of  a  particular  state  it  was 
provided,  as  early  as  1866,  that 

"no  subsequent  repeal  of  any  such  State  law  shall  affect  any  prosecu- 
tion for  such  offense  in  any  court  of  the  United  States."  ^ 

A  similar  provision  was  embodied  in  an  Act  of  1898.^" 
Nor  would  such  express  provisions  appear  necessary.  On 
principle  it  would  seem  that  since  Congress  alone  may  extend 
laws  to  China,  it  alone  may  withdraw  them  when  so  ex- 
tended and  that  the  act  of  a  territorial  legislature  could  have 
no  effect  on  such  laws. 

IV. 

It  is  conceded,  as  we  have  seen,  that  the  corporation  act 
of  Congress  of  March  2,  1903,  was  extended  to  China. 
But  the  questions  involved  are  too  important  to  rest  upon 
a  mere  admission  and  we  shall  therefore  inquire  whether 
said  act  meets  the  requirements  of  the  extending  law 
above  quoted — whether,  in  other  words,  it  is  one  of  the 
laws  "necessary  to  execute  the  treaties"  and  "suitable  to 
carry  them  into  effect." 

Now  one  of  the  primary  objects  of  the  treaties  was  the 
prom.otion  of  commerce.  That  can  hardly  be  accomplished 
in  these  days  without  corporations  and  a  law  authorizing 
their  formation  would  seem  to  be  one  of  the  laws  "neces- 
sary to  execute  the  treaties."  Indeed  the  very  desire  of 
our  citizens  to  incorporate  in  China  affords  the  best  evi- 
dence of  such  necessity. 


"  U.  S.  V.  Allen,  ante,  p.  311. 

''14  U.  S.  Stats.  St  Large,  Ch.  24,  sec.  2,  p.  13;  U.  S.  Rev.  Stats., 
sec.   5391. 

'"30  U.  S.  Stats,  at  Large,  Ch.  576,  p.  717. 


6(52  I  EXTRATERRITORIAL  CASES. 

Moreover  this  Act  of  March  2,  1903,  is  not  only  the  latest 
expression  of  Congress  on  the  subject  of  incorporation ; 
it  seems  to  us  the  most  suitable.  The  legislation  on  that 
subject  enacted  for  the  District  of  Columbia  is  not  only 
much  older  but  seems  to  be  confined  mainly  to  special 
classes  of  corporations.  The  Act  in  question,  however, 
appears  to  be  an  up-to-date  general  incorporation  law. 
Neither  the  argument  of  this  case  nor  a  careful  scrutiny 
of  the  Act  itself  has  brought  to  light  any  feature  of  it 
which  is  unsuitable  to  conditions  in  China.  It  requires, 
it  is  true,  a  copy  of  the  articles  of  incorporation  to  be  filed 
*'in  the  office  of  the  Secretary  of  the  District ;"  ^^  but  in 
the  case  of  extended  legislation  such  provisions  are  to  be 
construed  not  literally  but  as  meaning  the  corresponding 
office,  which,  in  China,  would  seem  to  be  the  Legation,  since 
it  is  the  only  local  American  institution,  besides  this  court, 
whose  functions  extend  to  the  whole  of  China.  In  applying 
the  Oregon  statute,  which  required  filing  with  the  county 
clerk,  the  United  States  District  Court  for  Alaska  held 
that  it  would  be  sufficient  to  file  with  a  similar  official. 

"Here,  then,  was  the  officer  corresponding  to  the  county  clerk, 
with  whom  the  other  certificate  might  be  filed.  We  are  of  the 
opinion,  however,  that  a  filing  of  the  second  certificate  with  the  clerk 
of  the  court  would  have  met  the  requirement,  for  it  is  well  settled 
that  the  intention  of  the  Legislature  should  not  be  defeated  by  a 
strict  construction  of  the  statute.  *  *  *  -pj^g  intention  of  Con- 
gress is  gathered,  and  by  following  out  this  obvious  intention  the 
persons  desiring  to  incorporate,  while  not  filing  with  an  actual 
Secretary  of  State  and  an  actual  county  clerk,  are  substantially 
complying  with  the  law  when  they  file  with  the  surveyor  general  and 
the  clerk  of  the  court  for  the  division  in  which  they  intend  to  carry 
on  business."  ^" 

Another  copy,  however,  is  required  to  be  "filed  in  the 
office  of  the  clerk  of  the  District  Court"  "  and  to  that 
designation  the  clerk  of  this  Court  well  corresponds.  The 
incorporation  is  thus  effected  by  an  officer  of  the  Court 

"  Act  of  March  2,  1903,  32  U.  S.  Stats,  at  Large,  Ch.  978,  p.  947, 
sec.  2. 

"Alaska  Gold  Mining  Co.  v.  Ebner,  2  Alaska,  611,  614,  616. 

*•  Act  of  March  2,  1903,  sec.  2.  ' 


U.  S.  EX  REL.  RAVEN  V.  McRAE,  JUNE  9,  1917.  QQ^ 

and  the  concern  placed  under  its  observation  from  the 
start.  Each  year  the  corporation  must  file  with  the  said 
Clerk  a  list  of  its  officers  and  notice  of  any  changes  there- 
in must  likewise  be  filed. ^*  The  opportunities  for  official 
supervision  are,  therefore,  much  greater  than  in  the  case 
of  corporations  formed,  as  many  have  been,  under  the  laws 
of  some  distant  state,  to  do  business  in  China  where  no 
official  inspection  on  the  ground  is  possible. 

Moreover  the  conditions  both  preliminary  to,  and  after, 
incorporation  are  strict.  The  articles  are  required  to  state 
full  particulars,^^  all  stock  must  be  paid  for  "at  its  true 
money  value"  ""  and  "every  stockholder  shall  be  personally 
liable  to  the  creditors  of  the  company  for  the  amount  that 
remains  unpaid  upon  the  par  value  of  his  stock."  ^^  The 
capital  stock  must  not  be  increased  nor  diminished  except 
as  prescribed  by  law.^®  The  corporation  must  "keep  cor- 
rect and  complete  books"  which  must,  "at  all  reasonable 
times,  be  open  to  the  inspection  of  stockholders,"  ^^  and 
every  year  the  principal  officers  must  prepare  and  publish 
for  three  successive  weeks  in  a  newspaper  of  general  cir- 
culation in  the  jurisdiction  a  sworn  statement  showing 

"(1)  the  number  of  shares  of  capital  stock  outstanding;  (2)  the 
amount  paid  in  on  each  share  of  stock;  (3)  the  actual  paid-up 
capital  of  the  corporation;  (4)  the  actual  cash  value  of  the  property 
of  the  corporation  and  the  character,  location,  and  nature  of  the 
same;  (5)  the  debts  and  liabilities  of  the  corporation,  and  for  what 
the  same  were  incurred  and  whether  the  same  are  secured  or  un- 
secured and  the  amount  of  each  kind,  and,  if  secured,  the  character 
and  kind  of  security;  (6)  the  salaries  severally  paid  each  and  every 
officer,  manager  and  superintendent  of  the  corporation  during  tlie 
preceding  year;  and,  (7)  the  increase  or  decrease,  if  any,  of  the 
stock,  the  capital,  and  the  liabilities  of  the  corporation  during  the 
preceding  year." "" 

With  the  court  officers  ready  to  see  that  these  require- 
ments are  observed  the  interests  of  both  the  public  and 
the  stockholders  appear  to  be  amply  safeguarded.  No 
defect  or  shortcoming  has  been  pointed  out  in  this  statut'^ 


"Id.,  sec.  20.  "Id.,  sec.  13. 

^•Id.,  sec.  2.  "Id.,  sec.  16. 

"Id.,  sec.  14.  ^'Id.,  sec.  23. 

='Id.,  sec.  14. 


664  I   EXTRATERRITORIAL  CASES. 

as  compared  with  the  most  advanced  corporation  laws  *^ 
and  if  Congress  could,  after  long  effort,  be  persuaded  to 
enact  another  law,  especially  for  this  jurisdiction,  it  is  not 
apparent  wherein  it  would  excel  the  present  one.  We  are, 
therefore,  of  the  opinion  that  the  Act  of  March  2,  1903, 
is  quite  as  "necessary"  and  ''suitable"  as  the  other  "laws 
of  the  United  States"  which  have  been  held  by  this  and 
other  courts  to  have  been  extended  here  by  the  general  act 
above  quoted.  For  there  can  be  no  half-way  adoption  of 
that  doctrine;  it  includes  all  such  laws  or  none.  It  can- 
not logically  be  restricted  to  any  particular  class  of  acts. 
It  is  just  as  applicable  to  civil  laws  as  to  criminal;  just 
as  "necessary"  in  respect  to  corporations  as  to  procedure. 

V. 

But  the  "suitability"  of  this  Act  of  March  2,  1903, 
depends  upon  its  requirements  and  applicants  for  incor- 
poration thereunder  must  show  compliance  therewith  so 
far  as  compliance  is  possible  before  incorporation.  Inter 
alia  the  act  requires  the  articles  to  state  "the  amount  of 
capital  stock  of  said  corporation,  and  how  the  same  shall 
be  paid  in."  *-  The  importance  of  this  requirement  be- 
comes apparent  when  read  in  connection  with  that  already 
noticed : 

"No  corporation  shall  issue  any  of  its  stock,  except  in  considera- 
tion of  money,  labor,  or  property  estimated  at  its  true  money  value."  ** 

The  object  of  this  is  evidently  to  insure  a  bona  fide 
capital  at  the  start  and  to  prevent  incorporation  with 
merely  "watered"  stock.  Clearly  this  is  a  wise  precau- 
tion whose  observance  must  be  strictly  enforced. 

Examining,  in  the  light  of  this  requirement,  the  articles 
here  tendered  we  find  that  the  applicants  have  stated  "the 
amount  of  capital  stock"  but  not  "how  the  same  shall  be 
paid  in."  It  does  not  appear  whether  the  stock  has  been 
issued  (and  hence  the  capital  created)  "in  consideration 
of  money,  labor  or  property"  or  of  something  else,  nor 

■"  Cf.  the  new  Public  Utilities  Act  of  Illinois,  discussed  in  Illinois 
Law  Rev.,  XII,  12. 
"  Id.,  sec.  2. 
"Id.,  sec.  14. 


U.  S.  EX  REL.  RAVEN  V.  McRAE,  JUNE  9,  1917.     665 

whether,  if  the  consideration  is  other  than  money,  it  is 
"estimated  at  its  true  money  value." 

IVIoreover  the  articles  fail  to  show^  whether  the  capital 
stock  is  to  be  paid  in  before  incorporation  or  after.  For 
aught  that  appears  the  concern  might  be  incorporated 
without  any  tangible  capital  by  merely  issuing  certificates 
of  stock.  In  this  case  the  applicants  are  worthy  and  re- 
putable citizens  and  we  may  assume  that  no  such  result 
was  intended.  But  as  this  is  the  first  case  where  the 
question  has  arisen  here  we  must  adopt  a  rule  which  would 
apply  to  all  situations  and  prevent  incorporation  by  im- 
pecunious adventurers. 

Again  the  act  provides  that  corporations  organized 
thereunder 

"shall  have  the  right  to  acquire  and  hold  only  such  real  estate  as 
may  be  necessary  to  carry  on  their  corporate  business."" 

We  are  disposed  to  agree  with  respondent's  counsel  that 
this  provision  is  infringed  by  the  recital,  in  the  articles, 
of  the  proposed  corporation  of  an  intention 

"to  take,  own,  hold,  deal  in,  mortgage  or  otherwise  lien,  and  to 
lease,  sell,  exchange,  transfer,  or  in  any  manner  whatever  dispose 
of,  real  property  wherever  situated." 

Now  the  Clerk  is  required  to  record  articles  only  after 
they  have  been  filed  and  the  only  articles  which  are  en- 
titled to  be  filed  are  those  which  contain  the  particulars 
prescribed  by  the  statute.  Doubtless  the  act  of  filing 
is  a  ministerial  rather  than  a  judicial  one  but  the  law 
seems  to  be  well  settled  that  the  recording  oflficer  cannot 
be  compelled  by  mandamus  to  accept,  for  filing,  papers 
which,  on  their  face,  fail  to  comply  with  the  statute.*^  And 
since  the  recording  of  the  articles  perfects  the  corporate 
existence  which  can  then  be  questioned  only  in  a  direct 
proceeding  *^  it  seems  to  be  not  only  the  right,  but  the 
duty,  of  the  officer  to  see  that  such  existence  does  not 

"  Id.,  sec.  5. 

*  State  V.  McGrath,  92  Mo.,  355,  5  S.  W.,  29;  Woodburg  v.  Mc- 
Clurg,  98  Miss.,  831,  29  S.  W.,  514;  People  v.  Nelson,  3  Lans.  (N. 
Y.),  394. 

'*Lord  V.  Bldg.  Ass'n.,  37  Md.,  320,  327;  Cochran  v.  Arnold,  58 
Pa.  St.,  399. 


QQQ  I   EXTRATERRITORIAL   CASES. 

commence  until  the  conditions  prescribed  by  the  law  have 
been  fulfilled.  In  providing  for  incorporation  thru  the 
machinery  of  the  Court,  and  imposing  the  responsibility 
upon  its  officers,  the  act  which  we  are  now  applying 
seems  to  have  been  intended  to  prevent  the  evils  ^f 
loose  and  reckless  incorporation  by  making  possible  in 
advance  a  careful  scrutiny  and  strict  exaction  of  all  pre- 
scribed conditions.  This  offers  opportunities  of  super- 
vision which  would  be  lost  if  the  recording  officer  were 
treated  as  a  mere  automaton,  obliged  to  accept  any  cor- 
porate papers  which  might  be  presented. 

Having  reached  a  conclusion  which  disposes  of  the  case 
before  us  we  find  it  unnecessary  to  prolong  this  opinion 
by  entering  upon  a  consideration  of  the  other  question 
discussed  in  argument,  viz.,  whether,  under  the  law  which 
we  have  found  to  be  in  force  here,  banking  corporations 
may  be  organized.  Since  a  determination  of  that  ques- 
tion is  not  necessary  in  order  to  decide  the  pending  cause, 
whatever  we  might  say  thereon  would  be  obiter  dicta  and 
we  prefer  to  discuss  it  only  when  the  necessity  for  ad- 
judication arises. 

For  the  reason  that  the  proposed  articles  of  incorpora- 
tion do  not,  in  our  judgment,  comply  with  the  statute, 
the  writ  of  mandamus  is 

DENIED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Gilbert  Reid. 

[Causes  Nos.  588,  589,  590;  filed  June  12,  1917.] 

SYLLABUS. 

(By  the  Court.) 

CRIMINAL  PROCEDURE:  DISCONTINUANCE  of  a  prosecution  before 
trial  is  within  the  District  Attorney's  discretion,  subject  to  no 
other  approval  than  the  court's. 

LOBINGIER,  J.: 

These  are  prosecutions  for  seditious  libel  which  have  not 
yet  come  on  for  trial.  In  each  of  them  the  District  At- 
torney now 


UNITED  STATES  V.   REID,   JUNE    12,    1917.  667 

"moves  the  Court  to  enter  a  nolle  prosequi  to  the  information  for  the 
following  reasons,  to  wit:  that  public  interests  will  best  be  served 
by  not  prosecuting  the  cause  to  a  further  determination  at  this 
time." 

It  is  stated  in  a  work  of  authority: 

"At  common  law  the  matter  of  entering  a  nolle  prosequi  rests 
entirely  within  the  discretion  of  the  prosecuting  officer,  and  leave 
of  the  court  is  not  necessary;  and  by  the  weight  of  authority  this 
is  still  the  rule,  in  the  absence  of  a  statute,  where  the  entry  is  be- 
foi'e  the  trial  begins."  ' 

Under  the  Act  of  Congress  of  March  3,  1899, 

"the  court  may  either  on  its  own  motion  or  upon  the  application  of 
the  District  Attorney,  and  in  furtherance  of  justice,  order  an  action, 
after  indictment,  to  be  dismissed;  but  in  that  case  the  reasons  of  the 
dismissal  must  be  set  forth  in  the  order,  which  must  be  entered  in 
the  journal." ' 

"The  entry  of  a  nolle  prosequi  is  abolished;  and  the  district  at- 
torney cannot  discontinue  or  abandon  a  prosecution  for  a  crime, 
except  as  provided  in   the  last  section." ' 

Whether  this  act  is  fully  in  force  here  we  need  not  now 
stop  to  determine.     For,  as  we  said  in  a  similar  case, 

"the  Court's  consent  *  '"  *  is  ordinarily  granted  as  a  mat- 
ter of  course  *  *  *  where  the  prosecuting  officer,  who  usually 
hears  but  one  side  of  the  cause,  and  is  certainly  not  biased  in  favor 
of  the  accused,  reaches  the  conclusion"  that  it  should  be  discon- 
tinued.* 

Whether  this  motion  is  treated  as  one  for  nolle  prosequi, 
discontinuance,  or  dismissal  (and  it  must  be  one  of  these) , 
the  result  is  the  same. 

The  record  contains  extensive  correspondence  between 
the  Honorable  Paul  S.  Reinsch,  American  Minister  to  China, 
and  the  United  States  Marshal  for  China  disclosing  the 
former's  desire  that  the  accused  be  prosecuted;  and  it  has 
been  suggested  in  his  behalf  that  the  District  Attorney  be 
required  to  obtain  the  Minister's  approval  before  the  con- 
templated action  be  taken. 

^  Cyc,  XII,  375. 

'  30  U.  S.  Stats,  at  Large,  Sess.  Ill,  Pt.  I,  Tit.  II,  Ch.  429,  sec.  261, 
(p.  1315). 

=  Id.,  sec.   262. 

*  U.  S.  V.  Sandage,  ante,  p.  636. 


668  I  EXTRATERRITORIAL  CASES. 

Such  a  course  would  be  quite  foreign  to  American  judicial 
procedure  whose  underlying  theory  is  the  complete  separa- 
tion of  governmental  powers  and  the  entire  independence 
of  the  judiciary.  The  act.  establishing  this  Court  trans- 
ferred to  it  the  Minister's  judicial  ^  as  well  as  legislative  ® 
functions  and  in  China,  as  elsewhere,  the  Minister  is  now 
a  diplomatic  and  executive  officer  only. 

Comity  and  cooperation  between  the  different  branches 
of  the  government  are,  of  course,  highly  desirable  and  the 
District  Attorney  is  doubtless  ready  at  all  times  to  receive 
suggestions  from  other  officials.  But  he  is,  nevertheless, 
the  sole  American  prosecuting  officer  in  China  and  the 
ultimate  discretion  to  institute  or  seek  the  discontinuance 
of  criminal  proceedings  in  this  court  rests  with  him. 

The  motion  is  sustained  pro  forma  with  costs  de  officio 
and  the  defendant's  bail  released. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Lucy  G.  Werlich's  Will. 

[Cause   No.   595;    filed   June   26,    1917.] 

SYLLABUS. 
(By  the  Court.) 

I.WILLS:  Certification.  A  certified  copy  of  a  will  purporting  to 
be  executed  by  the  British  Registrar  of  the  "Principal  Probate 
Registry"  and  authenticated  by  the  seal  of  the  Probate  Divi- 
sion of  the  High  Court  of  Justice  is  sufficient  without  other 
showing  as  to  the  status  of  the  certifier. 

2.  Id. :  Id.:  Effect.  Where  a  probated  will  is  out  of  the  jurisdiction 
a  certified  copy  made  from  an  exemplified  copy  of  the  original 
is  admissible. 

Messrs.  Piatt,  Macleod  &  Wilson  by  Mr.  Wilson,  for  the 
petitioner. 

No  appearance  contra. 

LOBINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  petition  of  G. 
L.  Campbell  for  Letters  of  Administration,  in  support  of 
which  the  petitioner  presents  a  certificate  entitled,  *Tn  his 


'  34  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  3934,  sec.  1. 

•Id.,  sec.  5.     Cf.  Op.  Solicitor  State  Dept.  March  2,  1917. 


IN  RE  WERLICH'S  WILL,  JUNE  26,   1917.  669 

Majesty's  High  Court  of  Justice;  the  Principal  Probate  Reg- 
istry," and  reciting  that  Lucy  Glover  Werlich,  died  in  New- 
York  on  October  5,  1915,  and  that 

"the  last  will  and  testament  (a  copy  whereof  is  hereunto  annexed) 
of  the  said  deceased  was  proved  and  registered  in  the  Principal 
Probate  Registry  of  His  Majesty's  High  Court  of  Justice  and  that 
Administration  of  all  the  Estate  which  by  law  devolves  to  and  vests 
in  the  personal  representative  of  the  said  deceased  was  granted  by 
the  aforesaid  Court  to  Verdie  Fearon  (wife  of  George  Fearon)  sister 
of  deceased  and  the  said  George  Fearon,  the  surviving  executors  for 
England  and  China  named  in  the  said  will,"  etc. 

The  certificate  is  signed  by  a  party  purporting  to  be  the 
Registrar  and  the  "Seal  of  the  Probate  Division  of  the  High 
Court  of  Justice,  Principal  Registry,"  is  attached.  There 
being  no  further  evidence  offered  or  available  the  question 
is  presented  whether  the  instrument  in  question  is  sufficient- 
ly proved. 

There  is  little  difficulty  in  assuming  that  the  Registrar 
is  the  lawful  custodian  of  whatever  is  registered  in  the 
probate  registry.  But  at  common  law  "the  custodian  of 
records  had,  as  custodian,  no  implied  authority  to  certify 
copies."  '  In  this  jurisdiction,  however,  we  have  the  benefit 
of  a  statute  providing  that 

"A  judicial,  legislative,  or  executive  record  *  *  *  of  any  State 
or  Territory  of  the  United  States,  or  of  any  foreign  country,  or  of 
any  political  subdivision  of  either,  may  be  proved  by  the  production 
of  the  original,  or  by  a  copy  thereof,  certified  by  the  clerk  or  other 
person  having  the  legal  custody  thereof,  with  the  seal  of  the  court 
or  the  official  seal  of  such  person  affixed  thereto." ' 

It  will  be  seen  that  this  does  not,  as  do  many  similar 
statutes,  require  the  certificate  of  another  official  to  the 
effect  that  the  custodian  is  such.  The  seal  supplies  authen- 
tication and  the  proof  in  that  respect  suffices, 

II. 

The  copy  of  the  will  which  the  certificate  recites  is  "here- 
vmto  annexed"  is  accompanied  by  what  purports  to  be  an 
exemplified  copy  of  a  decree  of  the  Surrogate  of  New  York 
County  admitting  the  said  will  to  probate  in  his  court  on 

'Wigmore,  Evidence,  III,  2138. 

^  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  Tit.  II,  sec.  1040. 


670  I  EXTRATERRITORIAL  CASES. 

December  4,  1916.  Altho  the  date  of  probate  in  the  British 
High  Court  of  Justice  does  not  appear  it  would  seem  to 
have  been  subsequent  to  the  last  named  date  and  the  state 
of  the  record  suggests  that  the  second  probate  was  based  on 
the  first  and  that  what  we  really  have  here  is  a  copy  of  a 
copy  of  the  will.  But  this,  while  undesirable,  is  not  neces- 
sarily fatal.  For  altho  it  is  stated  by  eminent  authority  ^ 
that 

"if  the  original  and  also  the  immediate  copy  are  both  existing  public 
records"     *     *     *     ^  copy  of  the  latter  should  be  excluded, 

he  adds, 

"Where  the  original  is  out  of  the  jurisdiction,  the  requirement  may 
well  be  relaxed"; 

and  he  cites  a  decision  ^  where  probate  of  a  will  on  a  cer- 
tified copy  of  probate  from  an  authenticated  copy  in  an- 
other state  was  upheld.  In  this  instance  neither  the  original 
nor  the  first  copy  is  within  the  jurisdiction  of  this  court  and 
in  view  of  the  long  delay  involved  in  procuring  a  copy  of 
the  original  we  are  disposed  to  exercise  the  discretion  in- 
dicated by  the  authority  above  quoted  in  stating  that  "the 
requirement  may  well  be  relaxed."  This  is  not  intended, 
however,  to  apply  to  cases  other  than  that  here  presented. 

The  petitioner  presents  a  Power  of  Attorney,  duly  authen- 
ticated under  Notarial  Seal,  from  the  parties  named  in  the 
will  as  executors,  and  purporting  to  confer  upon  him  exten- 
sive authority  regarding  the  estate  in  China.  Aside  from 
the  question  whether  this  grant  is  in  all  respects  valid  it 
at  least  indicates  the  petitioner  as  a  "person  competent  and 
qualified"  ^  to  be  named  as  administrator. 

The  citizenship  of  the  deceased  seems  sufRciently  shown 
by  the  recital  in  the  certificate  that  she  was  "the  wife  of 
Percival  Julius  Werlich"  whose  estate  is  now  being  admin- 
istered in  this  court  as  an  American  citizen. 

We  therefore  find  that  the  petitioner  is  entitled  to  an- 
cillary Letters  of  Administration  of  the  estate  in  China 
cum  testamerito  annexo  and  direct  that  such  Letters  issue 
accordingly  upon  his  taking  and  subscribing  the  oath  as 

'  Wigmore,  Evidence,  II,  1555. 

'  Corbett  v.  Nutt,  18  Gratt.    (Va.),  624,  633,  637. 
"  Act  of  June  6,  1900,  Sess.  I.,  31  U.  S.  Stats,  at  Large,  Ch.  786,  Tit. 
II,  sec.  774. 


UNITED  STATES  V.  SONICO,  JAN.  19,  1918.      671 

required  by  law,  executing  a  proper  bond  in  a  sum  equal 
to  twice  the  value  of  said  local  estate  and,  since  he  is  a 
British  subject,  filing  a  submission  to  the  jurisdiction  of 
this  court. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Pablo  Sonico. 

[Cause  No.  607;   filed  January  19,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  EVIDENCE.     A  proposed  or  disputed  rule  of  evidence  whose  design 

is  to  avoid  misleading  the  jury,  will  not  be  adopted  in  this 
jurisdiction  where  all  trials  are  by  the  court. 

2.  Id.  :   This   principle    applied    to    an    attempted    limitation   upon    the 

rule  in  criminal  cases  which  admits  in  evidence  acts  and  state- 
ments  in  the   accused's  presence. 

3.  Id.:  The  Record  of  an  Inquest  upon  the  body  of  a  deceased,  for- 

mally held  in  accordance  with  the  laws  of  the  jurisdiction,  is 
admissible  and  entitled  to  be  considered  especially  where  no 
objection    is   offered. 

4.  Id.  :   The  Flight  of  the  Accused,  immediately  after  the  crime, 

the  corpus  delicti  having  been  proved,  may  be  considered  as  an 
inculpatory    circumstance. 

5.  Id.  :   Identification   of   the   accused,    shortly   after   the   crime,   by 

three  disinterested  persons  acting  independently,  held  sufficient. 

6.  Id.  :    U.  S.  v.  Martin,  No.  487,  distinguished. 

7.  Id.  :   Causation.      Where  the  deceased,  a  young  man  employed  at 

hard  labor,  collapsed  shortly  after  he  was  stabbed,  and  died  a 
few  minutes  later,  and  no  intervening  cause  is  shown,  a  phy- 
sician's opinion,  following  a  finding  at  the  inquest,  that  death 
resulted   from   the   wound,   held   sufficient  proof  of  causation. 

8.  MANSLAUGHTER   defined   and    found   to   have   been    committed   but 

with  extenuating  circumstances. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty,,  for  the 
prosecution. 

M.  L.  Heen,  Esq.,  for  defense. 

LOBINGIER,  J.: 

The  accused  is  charged  with 

"the  crime  of  manslmtghter:  in  that  the  said  Pablo  Sonico,  within 
the  jurisdiction  of  said  Court,  at  Shanghai,  China,  did  on  or  about 
the    twenty-first    day    of    August,    nineteen    hundred    and    seventeen. 


672  I   EXTRATERRITORIAL   CASES. 

cause  the  death  of  a  human  being,  one  Loh  Yuen  Zien,  a  citizen  of 
the  Republic  of  China,  by  striking  him  with  a  knife  and  inflicting  a 
mortal  wound,  from  which  wound  the  said  Loh  Yuen  Zien  languished 
and  died."' 

On  the  evening  in  question  four  Filipinos,  including  the 
accused,  who  were  employed  on  the  steamship  Don  Neil, 
went  ashore  and  stopped  at  a  Chinese  fruit  store  (No.  1032 
Yangtszepoo  Road)  where  they  bought  some  apples.  The 
accused  endeavored  to  pay  for  them  with  a  twenty  cent 
piece  which  the  storekeeper  pronounced  bad  and  a  quarrel 
ensued,  whereupon  the  storekeeper  called  a  Sikh  policeman 
who  started  to  take  all  the  participants  to  the  police  station. 
Upon  arriving  at  Jansen  Road  the  Filipinos  resisted  and 
three  of  them,  including  the  accused,  became  engaged  in 
a  fight  with  some  Chinese,  in  the  course  of  which  a  Filipino 
stabbed  a  Chinese  who  toppled  over,  became  unconscious 
and  was  taken  to  St.  Luke's  Hospital  where  he  died  before 
medical  attendance  reached  him. 

The  foregoing  is  undisputed  but  the  defense  raises  two 
questions  of  fact,  viz.:  (1)  the  identity  of  the  assailant 
and  (2)  the  sufficiency  of  the  wound  to  cause  death.  We 
shall  consider  the  latter  first. 

The  prosecution  offered  in  evidence  the  record  (Ex.  A) 
of  an  inquest  held  over  the  deceased's  body  by  the  Chinese 
Mixed  Court  Magistrate  and  American  Assessor  who  found 
that  the  "death  was  caused  by  the  wound."  At  the  time 
of  this  offer  defendant's  counsel  said  (trans,  p.  56)  : 

"I  will  admit  the  authenticity  of  the  record  (Ex.  'A')  subject 
to  objection  on  my  part.  *  *  *  j  object  to  the  typewritten  matter 
which  accompanies  the  finding  at  the  inquest.      I  admit  the  finding." 

Later,  counsel  said  (p.  81)  : 

"I  move  this  Honorable  Court  to  strike  from  the  record  and  files 
in  this  case  the  record  which  has  been  admitted  (Ex.  *A'),  my  motion 
being  based  on  the  additional  testimony  of  the  witness." 

The  witness  here  referred  to  was  the  Assessor  who  sat 
at  the  inquest  and  whose  testimony  related  to  the  character 
of  that  proceeding  and  showed  incidentally  that  the  accused 
was  present. 

The  naked  legal  question  whether  the  record  of  a  coroner's 
inquest  is  admissible  in  another  cause  is  one  upon  which 


UNITED  STATES  V.  SONICO,  JAN.  19,  1918.      673 

the  courts  are  divided.  In  England  and  several  American 
jurisdictions  the  record  is  admitted  and  considered,  tho  it 
is,  of  course,  not  conclusive,  as  to  the  cause  of  dea'th.^  In 
another  group  of  American  courts  such  a  record  is  excluded.- 
These  latter  tribunals,  however,  formulate  rules  for  jury- 
trials  and  naturally  seek  to  guard  against  unwarranted 
inferences  which  a  jury  might  draw  from  a  coroner's 
inquest.  But  in  this  jurisdiction,  where  all  trials  are  by 
the  court,  no  such  need  arises.  A  liberal  rule  which  per- 
mits the  court  to  consider  such  evidence  for  what  it  may 
be  worth  may  safely,  and  we  think  should,  be  adopted 
here.  Especially  in  a  case  like  this  where  the  record  in 
question  was  once  formally  admitted  without  objection  and 
where  the  motion  to  strike  was  made  only  after  the  in- 
troduction of  new  evidence,  which  in  our  judgment  changes 
the  situation  in  no  way,  we  have  no  hesitancy  in  over- 
ruling the  motion. 

The  finding  which  was  thus  admitted  was  that  death 
was  "caused  by  a  wound  with  a  knife  inflicted  in  the  course 
of  a  fight,"  etc.,  referring  to  the  affair  above  mentioned. 
But  it  is  not  the  only  evidence  to  that  effect.  Dr.  Tucker, 
who  was  called  to  attend  the  deceased  at  the  hospital, 
testified  (p.  88)  in  response  to  the  question  as  to  what,  in 
his  opinion,  caused  the  death: 

"My  opinion  is,  a  stab  wound  probably  of  the  heart  but  possibly 
of  the  liver." 

^England.  Sergeson  v.  Sealey,  2  Atk.,  412;  Starkie,  Ev.  (10th 
ed.),  406. 

California.     Walther  v.  Ins.  Co.,  65  Cal.,  417,  4  Pac,  413, 

Illinois.  Grand  Lodge  v.  Wieting,  168  111.,  408,  48  N.  E.,  59;  Pyle 
V.  Pyle,  158  111.,  289,  41  N.  E.,  999;  U.  S.  L.  Ins.  Co.  v.  Vocke 
(Kielgast),  129  111.,  557,  22  N.  E.,  467,  6  L.  R.  A.,  65. 

Iowa.  Metzradt  v.  Modern  Brotherhood,  112  la.,  522,  84  N.  W., 
498. 

Mississippi.     Supreme  Lodge  v.  Fletcher,  78  Miss.,  377,  29  So.,  523. 

*  Colorado.  Germania  Ins.  Co.  v.  Ross-Lewin,  24  Col.,  43,  51  Pac, 
488. 

Indiana.  Union  Central  Ins.  Co.  v.  Hollowell,  14  Ind.  App.,  611, 
43  N.  E.,  277. 

Maryland.     State  v.   Comr's.,  54  Md.,  426. 

Michigan.     Wasey  v.  Ins.  Co.,  126  Mich.,  119,  85  N.  W.,  459. 

Oregon.     Cox  v.  Royal  Tribe,  42  Or.,  365,  71  Pac,  73. 

Pennsylvania.     In  re  Ralston,  9  Pa.  Dist.  Ct.,  514. 

14008  O.  W. 43 


674  I  EXTRATERRITORIAL  CASES. 

It  is  true  that  the  physician  made  no  post-mortem  exam- 
ination ;  but,  while  this  is  advisable,  as  recommended  by- 
high  authority,^  we  find  no  warrant  for  rejecting  the  opinion 
on  that  ground.  Moreover,  the  occurrences  when  the  wound 
was  inflicted,  tho  apparently  unknown  to  the  physician, 
clearly  strengthen  his  opinion.  The  Sikh  policeman,  who 
arrested  the  Filipinos,  testifies  (pp.  33-34)  that  the  de- 
ceased backed  into  his  arms,  after  receiving  the  wound,  and 
later  became  unconscious.  Mr,  Hilborne,  who  took  the  de- 
ceased to  the  hospital  in  his  car,  testifies  (p.  92)  : 

"I  saw  blood  oozing  from  his  chest;  I  knew  it  was  in  a  dangerous 
condition." 

Upon  being  asked  his  reasons  for  so  concluding  he  said 
(p.  93)  : 

"Seeing  the  blood  oozing  from  his  heart,  the  man  tried  to  speak 
and  he  couldn't,  and  knowing  the  closeness  of  the  wound  to  the 
region  of  the  heart  and  the  constant  flow  of  blood  when  it  was  com- 
ing out.  *  *  *  Shortly  after  I  put  him  in  the  motor  car,  he 
collapsed." 

Now  the  deceased,  according  to  the  statement  of  his  father 
at  the  inquest,  was  a  boy  of  18  and  was  employed  as  a 
coolie  in  a  cotton  mill.  We  cannot  assume  without  evidence 
that  one  of  that  age  and  occupation  died  from  some  organic 
cause  other  than  the  wound  which  produced  such  a  flow 
of  blood  and  so  soon  after  which  the  victim  collapsed  and 
died.  We  must  therefore  find  the  proof  sufficient  to  show 
that  death  resulted  from  the  wound. 

II. 

After  the  stabbing  the  accused  broke  away  and  fled  to 
the  ship.  Sergeant  Knight  of  the  Police  force  went  there 
accompanied  by  a  Filipino  who  had  been  brought  to  the 
station  and  who  is  identified  (p.  44)  as  Simon  Antong. 

Sergeant  Knight  testifies: 

"I  asked  him  who  was  the  tall  man  who  used  the  knife,  and  he 
pointed  to  the  accused."     (p.  48.) 

"Q.  In  what  way? 

A.  As  the  man  who  used  the  knife  who  stabbed  the  Chinese  on 
Jansen  Road."     (p.  43.) 

^  Wharton  &  Stille,  Medical  Jurisprudence,  III,  p.  188,  par.  219. 


UNITED  STATES  V.  SONICO,  JAN.  19,   1918.  675 

Whereupon  the  witness  arrested  the  accused. 

Defendant's  counsel  contends  that  this  cannot  be  given 
full  probative  force  because  it  is  hearsay.  But  an  ex- 
ception has  always  been  made  of  acts  or  statements  in  the 
accused's  presence.  Thus  in  the  report  *  of  the  Trial  of 
Elizabeth  Canning  for  Perjury  (1754)  appears  the  fol- 
lowing : 

"I  said  to  Canning,  'Now  look  for  the  woman  that  robbed  you;' 
she  immediately  pointed  to  Mary  Squires  and  said,  'That  old  woman 
in  the  corner  was  the  woman  that  robbed  me,'  *  *  *  Somebody 
said  (I  think  it  was  Mary  Squires's  daughter),  'Do  you  hear  what  the 
gentlewoman  says?  she  says  you  robbed  her.'  The  old  woman 
got  up  from  the  stool  immediately,  and  said — Mr.  Morton.  'I  object 
against  that  being  mentioned;  it  is  no  evidence.'  Court.  He  may 
give  an  account  of  what  was  said  in  the  defendant's  hearing  and 
presence." 

In  a  prosecution  for  horse  stealing  testimony  that  one 
in  a  group,  which  included  the  accused,  had  remarked  that 
he  would  like  to  get  hold  of  the  horses  in  question  was 
admitted  over  objection.  In  affirming  the  conviction  the 
appellate  court  said: 

"We  do  not  think  this  testimony  was  irrelevant  or  prejudicial 
if  defendant  was  present  when  the  statement  was  made,  or  if  he 
made  the  same,  but  think  it  extremely  pertinent  and  proper  testi- 
mony, regardless  of  whether  or  not  there  had  been  a  conspii'acy 
proven.  The  bill  [of  exceptions]  does  not  show  that  defendant  did 
not  hear  the  statement,  nor  does  it  show  he  did  not  make  it.  In 
either  event,  the  testimony  would  be  admissible." " 

Defendant's  counsel  cites  a  textwriter's  opinion  ''  that 
such  evidence  is  "only  introductory  and  for  the  purpose  of 
introducing  and  explaining  A's  (the  accused's)  conduct  and 
behavior  when  the  charge  was  made  and  his  answer  upon 
the  occasion."  But  aside  from  the  fact  that  no  cases  are 
cited  for  this  limitation  and  that  it  does  not  appear  in  those 
above  cited,  it  cannot  be  applied  here  because  there  is  no 
evidence  as  to  what  defendant's  "conduct  and  behaviour" 
were  when  he  "was  pointed  out  as  *  *  *  the  man  who 
stabbed  the  Chinese,"  nor  that  he  made  any  "answer."     Now 

'  19  How.  St.  Tr.,  383,  406. 

=  Shackleford  v.   State,  Tex.  Crim.  App.,  53  S.  W.,  884. 

'  Starkie,  Evidence,  quoted  in  Thayer's  Cases   (2nd  ed.),  115. 


676  I  EXTRATERRITORIAL  CASES. 

defendant,  tho  testifying  in  his  own  behalf,  does  not  deny- 
that  he  was  so  "pointed  out."  Indeed  he  admits  (p.  78) 
that  Simon,  the  Filipino,  was  with  "the  policeman"  (Ser- 
geant Knight)  who  came  to  the  ship  and  that  the  latter 
pointed  him  out  as  "guilty"  (p.  73)  and  the  accused  does  not 
claim  that  he  denied  the  imputation  or  said  anything. 

We  are  of  the  opinion,  therefore,  that  this  evidence  of 
identification  must  be  applied  as  in  the  cases  above  cited 
and  that  any  extension  of  the  hearsay  rule  (which  again 
is  mainly  to  guard  against  misleading  the  jury)  unless  war- 
ranted by  the  decisions,  ought  not  to  be  made  in  this  juris- 
diction where  all  trials  are  by  the  court. 

Defendant's  counsel  assails  the  reliability  of  Simon's  iden- 
tification on  the  ground  that  he  was  struggling  with  the 
Sikh  policeman  when  the  stabbing  occurred  and  that  the 
latter  failed  to  recognize  the  assailant,  whom  he  identified, 
however  (pp.  39,  40),  as  one  of  the  three  Filipinos.  Now 
these  were  Simon's  companions  and  it  would  not  seem 
strange  if  he  were  better  able  than  the  Sikh  to  differentiate 
the  one  who  held  the  knife  and  stabbed  the  deceased.  Nor 
does  it  follow  that  because  the  latter  did -not  see  the  stab- 
bing Simon  could  not.  His  failure  to  mention  it  or  his 
identification  at  the  preliminary  investigation,  eight  days 
later  and  in  his  deposition,  taken  fifteen  days  later,  might 
well  be  explained  on  the  ground  that  sufficient  time  had 
then  elapsed  for  the  boys  to  agree  upon  a  different  story; 
which  may  also  have  been  the  reason  why  they  were  not 
called  by  the  government.  At  any  rate  Simon's  undisputed 
identification  at  the  ship,  immediately  after  the  stabbing, 
seems  to  us  more  trustworthy  than  a  story  told  one  or  two 
weeks  later. 

After  defendant's  identification  and  arrest  on  shipboard 
he  was  taken  to  the  police  station  and  there  placed  in  a 
room  with  the  other  Filipinos.  The  storekeeper  who  had 
sold  him  the  fruit  was  then  called  and  asked  to  indicate 
the  one  who  stabbed  the  deceased.  He,  too,  pointed  to  the 
accused  as  did,  likewise,  a  cotton  mill  coolie  (pp.  50,  51). 
Both  of  these  men  testified  at  the  trial  that  they  saw  the 
accused  stab  the  deceased   (pp.  4,  25). 


UNITED  STATES  V.  SONICO,  JAN.  19,   1918.  677 

Counsel  devotes  more  than  half  of  his  argument  to  a 
criticism  of  the  storekeeper's  testimony.  His  analysis  of 
the  latter  is  keen  and  searching  but  fails  to  convince  us 
that  the  storekeeper  was  romancing  when  he  testified  that 
he  saw  the  stabbing.  The  discrepancies  real  or  alleged  in 
his  different  statements  mainly  involve  points  of  minor  im- 
portance and  might  in  part  be  accounted  for  by  the  dif- 
ficulties of  translation  and  in  part  by  the  lapse  of  nearly  five 
months  between  the  preliminary  examination  and  the  trial. 
It  is  not  claimed,  however,  that  there  is  any  discrepancy  in 
various  descriptions  of  the  actual  stabbing  occurrence.  No 
amount  of  cross-examination  sufficed  to  shake  the  store- 
keeper's positive  statements  on  that  point. 

We  do  not  find  that  a  fair  construction  of  what  this 
witness  says  requires  us  to  assume  either  that  his  view 
was  obstructed  by  telegraph  poles  and  trees  nor  that  his 
attention  was  distracted  by  the  arrest  of  Simon,  which 
would  be  less  important  to  him  than  the  stabbing.  He  had 
one  great  advantage,  too,  in  recognizing  the  accused;  he 
had  seen  and  talked  with  him  face  to  face  earlier  in  the 
evening.  Counsel  suggests  the  difference  over  payment 
for  the  fruit  as  a  cause  of  bias  against  the  accused.  But 
if  so  it  was  one  which  must  have  operated  similarly  against 
his  companions,  for  all  had  bought  the  fruit  and  the  others 
had  failed  to  pay.  There  seems  to  be  no  sufficient  reason 
why  the  storekeeper  should  select  one  more  than  another. 
But  that  he  should  recognize  the  accused  was  perfectly 
natural,  especially  as  the  latter  is  "a  tall  Filipino"  dis- 
tinguishable in  that  way  from  his  companions.  (Pre.  Ex., 
p.  14.) 

The  latter  circumstance  would  also  naturally  aid  the  other 
Chinese  witness  in  his  identification  of  the  accused.  He  is 
a  coolie,  of  course,  and  acutely  trained  powers  of  observ- 
ation cannot  be  expected  of  him.  He  is  unable  to  recall 
some  of  the  surrouiiding  circumstances;  but  the  sight  of 
the  knife  and  the  stabbing  v/ould  certainly  make  an  impres- 
sion. Nor  is  there  any  suggestion  of  interest  on  the  part 
of  this  witness.  He  did  not  even  volunteer  but  was  called 
by  the  detectives  against  the  wish  of  his  brother  (p.  29). 
Moreover,  all  attempts  to  show  collusion  or  even  communi- 


678  I  EXTRATERRITORIAL  CASES. 

cation   (p.  39)   between  the  two  Chinese  witnesses  failed. 
So  far  as  appears  they  were  not  previously  acquainted. 
Counsel  says: 

"It  is  improbable  that  the  accused  had  a  knife  at  the  time  of 
the  stabbing-  for  if  he  had  one  he  would  have  used  it  instead  of  the 
fruit   dealer's   knife   when   peeling  his   apple   at   the   fruit  shop." 

Now  the  only  witness  besides  the  accused  himself  who 
refers  to  such  a  knife  is  Gregorio  Gaisting  and  he  testified 
on  direct  examination  (Dep.,  p.  3)  in  reply  to  the 

"Q.      Tell  us  who  used  the  knife? 

A.      I   alone  myself,   in   peeling  the   apples." 

On  cross-examination,  indeed  he  says  (p.  12)  "each  of 
us  used  the  same  knife."  But  if  we  were  to  apply  to  this 
M'^itness  the  strictures  which  counsel  would  have  us  apply  to 
the  Chinese  witnesses  we  would  have  to  reject  his  testimony 
altogether. 

Assuming,  however,  that  there  was  such  a  knife  we  do 
not  think  that  it  necessarily  follows  that  the  accused  would 
have  used  his  own  instead.  If  the  knife  was  passed  around 
from  one  to  the  other  it  would  seem  quite  natural  for  the 
accused  to  have  used  it  along  with  the  rest. 

Counsel  also  considers  that 

"one  evidence  which  seems  to  point  strongly  to  the  innocence 
of  the  accused  is  that  he  arrived  at  the  ship  ahead  of  Gregorio  and 
Ramon  thus  indicating  there  was  no  delay  in  making  his  escape." 

But  flight  is  usually  treated  "  as  a  mark  of  guilt,  not 
innocence,  and  the  more  rapid  the  flight  the  stronger  the 
mark. 

The  decision  ■  of  this  Court  invoked  by  counsel  on  the 
question   of  identification  bears  little   resemblance  to  the 

'Alabama.  Garden  v.  State,  84  Ala.,  417,  4  So.,  823;  Murrell  v. 
State,  46  Ala.,  89,  7  Am.  Rep.,  592. 

California.     People  v.  Fine,  77  Cal.,  147,  19  Pac,  269. 

Indiana.     Anderson  v.  State,   104  Ind.,  467,  4  N.  E.,  63. 

Iowa.  State  v.  Poe,  123  la.,  118,  98  N.  W.,  587,  101  Am.  St.  Rep., 
307;  State  v.  Stevens,  67  la.,  557,  25  N.  W.,  777. 

Massachusetts.     Com.  v.  Brigham,  147  Mass.,  415,  18  N.  E.,   167. 

Missouri.     State  v.  Brooks,  92  Mo.,  542,  5  S.  W.,  257. 

Texas.  Thorp  v.  State,  59  Tex.  Grim.,  517,  129  S.  W.,  607,  29 
L.  R.  A.  (N.  S.),  421;  Williams  v.  State,  43  Tex.,  182,  23  Am.  Rep., 
590;  Williams  v.  State,  22  Tex.  App.,  497,  4  S.  W.,  64. 

"  U.  S.  V.  Martin,  ante,  p.  549. 


UNITED  STATES  V.  SONICO,  JAN.  19,  1918.      679 

case  at  ba!r.  There  the  accused,  an  American  sailor  among 
many  similarly  dressed,  was  identified,  some  time  after  the 
affair,  by  the  complaining  witness  only,  who  was  to  some 
extent  an  interested  witness ;  while  there  were  others  pres- 
ent and  certain  contrary  circumstances  left  unexplained. 
Here  the  identification  was  by  three  persons,  on  the  same 
evening  when  the  crime  was  committed,  none  of  whom  can 
fairly  be  called  interested,  one  of  whom  was  of  the  accused's 
own  race,  and  each  of  whom  was  independent  of,  and  dis- 
connected from,  the  others.  To  reject  such  an  identification 
would  be  to  discourage  needed  prosecutions  and  to  render 
convictions  well  nigh  impossible  and  we  feel  satisfied  that 
it  should  be  upheld  as  sufficient. 

But  the  same  testimony  which  identifies  the  accused  as 
the  assailant  also  shows  (p.  4)  that  his  blow  was  aimed 
at  another  and  that  he  did  not  intend  to  stab  the  deceased. 
This  brings  the  facts  within  the  limits  of  the  offense  charged, 
which  is  thus  defined  in  a  leading  case: 

"Manslaughter  is  the  unlawful  killing  of  another  without  malice; 
and  may  be  either  voluntary,  as  when  the  act  is  committed  with 
a  real  design  and  purpose  to  kill,  but  through  the  violence  of  sudden 
passion,  occasioned  by  some  great  provocation,  which  in  tenderness 
for  the  frailty  of  human  nature  the  law  considers  sufficient  to  pal- 
liate the  criminality  of  the  offense;  or  involuntary,  as  when  the 
death  of  another  is  caused  by  some  unlawful  act,  not  accompanied 
by  any  intention  to  take  life."  ° 

The  Act  of  Congress  of  March  3,  1899,  provides 

"That  whoever  unlawfully  kills  another,  except  as  provided  in 
the  last  three  sections,  is  guilty  of  manslaughter,  and  shall  be  im- 
prisoned in  the  penitentiary  not  more  than  twenty  nor  less  than  one 
year."  ^" 

The  Act  of  March  3,  1901,  contains  the  following: 

"Whoever  commits  manslaughter  shall  be  punished  by  a  fine  not 
exceeding  one  thousand  dollars,  or  by  imprisonment  not  exceeding 
fifteen  years,  or  both  such  fine  and  imprisonment."  " 

"Shaw,  C.  J.,  in  Commonwealth  v.  Webster,  5  Cush.  (Mass.),  295, 
52  Am.  Dec,  711. 

"30  U.  S.  Stats,  at  Large,  Sess.  Ill,  Ch.  429,  Tit.  II,  sec.  6;  Alaska 
Compiled  Laws,  sec.  1886. 

"31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854  (District  of  Columbia 
Code),  sec.  802. 


680  I  EXTRATERRITORIAL  CASES. 

The  Federal  Penal  Code  of  1909  provides 

"Every  person  guilty  of  voluntary  manslaughter  shall  be  im- 
prisoned not  more  than  ten  years.  Every  person  guilty  of  invol- 
untary manslaughter  shall  be  imprisoned  not  more  than  three  years, 
or  fined  not  exceeding  one  thousand  dollars,  or  both."  " 

Here  it  will  be  seen  is  a  progressive  reduction  of  the 
maximum  with  the  disappearance  of  the  minimum.  In 
view  of  the  fact  that  the  offense  was  committed  in  the 
midst  of  ah  affray  in  which,  altho  self-defense  is  not  urged, 
as  that  would  be  inconsistent  with  his  plea,  the  accused 
evidently  had  reason  to  fear  for  his  personal  safety,  we 
feel  that  a  penalty  much  below  the  maximum  should  be 
applied. 

The  accused  is  accordingly  sentenced  to  imprisonment 
for  one  year  and  six  months  and  to  pay  the  costs  of  this 
prosecution;  the  said  term  to  run  from  his  incarceration 
on  August  21,  1917  and  to  continue  in  the  Prison  for  Amer- 
ican convicts  at  Shanghai,  until  he  can  be  transported  to 
Bilibid  Prison,  Manila,  territory  of  the  Philippines,  where 
the  balance  of  said  term  shall  be  served. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  MacDonell. 

[Cause  No.  628;  filed  January  29,  1918.] 

SYLLABUS. 
(By   the  Court.) 

1.  EMBEZZLEMENT  more  than  most  crimes  requires  felonious  intent. 

2.  Id.:   Ingredients  of  the  offense  include    (1)   wrongful  conversion 

to  the  offender's  own  use  and  (2)  fraudulent  breach  of  a  fidu- 
cial relation. 

3.  Id.  :  Secrecy  and  Concealment,  if  not  ingredients,  are  at  least  the 

usual  accompaniments  of  the  crime  and  their  absence  tends  to 
raise  the  presumption  of  innocence. 

4.  Id.  :  Doctrine  Applied.      Where  the  attorney  in  fact,  who  was  also 

a  one-fifth  stockholder,  of  a  corporation  was  expressly  author- 
ized to  expend  its  money  for  corporate  purposes,  and  no  other 
limits  were  placed  on  his  discretion,  the  use  of  its  funds  in 
making  a  journey  to  the  home  office  to  adjust  pressing  matters 

"  Sec.  275. 


UNITED  STATES  V.  MACDONELL,  JAN.  29,   1918.         681 

of  importance  to  the  company  after  said  office   had   failed  to 
answer   his   correspondence,   does   not   constitute   embezzlement. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Messrs.  Sterling  Fessenden  and  H.  D.  Rodger,  for  the 
defense. 

LOBINGIER,  J.: 

The  defendant  is  charged  with 

"the  crime  of  embezzlement:  in  that  the  said  James  MacDonell, 
within  the  jurisdiction  of  said  Court,  at  Shanghai,  China,  on  or 
about  the  twenty-ninth  day  of  August,  nineteen  hundred  and  seven- 
teen, being  then  the  manager  and  attorney  in  fact  of  the  MacDonell- 
Chow  Corporation,  a  corporation  organized  and  existing  under  and 
by  virtue  of  the  laws  of  the  State  of  New  York,  United  States  of 
America,  and  being  then  and  there  entrusted  with  and  having  the 
possession,  custody  and  keeping  by  virtue  of  his  said  employment, 
of  certain  monies,  to  wit:  the  sum  of  Three  Thousand  Taels,  Shang- 
hai Sycee,  the  said  sum  being  the  equivalent  of  the  sum  of  Three 
Thousand,  Two  Hundred  and  Thirteen  and  75/100  Dollars,  United 
States  Gold  Coin,  at  the  rate  of  exchange  prevailing  on  said  last 
mentioned  date,  of  the  monies  and  property  of  the  said  MacDonell- 
Chow  Corporation,  did  unlawfully  and  feloniously  embezzle  and  fraud- 
ulently convert  the  same  to  his  own  '^se  and  benefit." 

At  the  time  of  the  transaction  specified  the  defendant 
was  not  only  "the  manager  and  attorney  in  fact  of  the 
MacDonell-Chow  Corporation"  but  he  was  also  a  stock- 
holder therein,  owning  one-fifth  (Ex.  7)  of  its  capital  stock. 
In  an  instrument  (Ex.  "A")  executed  in  New  York  on  No- 
vember 2,  1916,  in  which  the  defendant  is  described  "as 
the  representative  and  attorney  in  fact  of  the  MacDonell- 
Chow  Corporation"  he  is  authorized  and  empowered  inter 
alia 

"to  deposit  in  bank  or  banks  or  other  financial  institutions  in  China, 
Japan  or  elsewhere  in  the  name  and  for  the  account  of  this  cor- 
poration, such  moneys  of  this  corporation  as  may  come  into  his 
hands  in  the  course  of  the  business  of  this  corporation,  and  to  draw 
against  such  bank  account  or  accounts  with  othei.'  financial  institutions 
by  cheque,  draft  or  otherwise,  signed  with  the  nam^  of  thi^  corpora- 
tion by  James  MacDonell,  Attorney,  and  to  expend  such  moneys  of 
the  corporation  as  may  be  entrusted  to  him  for  the  purposes  of  the 
corporation;    to  collect   all  moneys   due   or   that  may  become   due   to 


682  I  EXTRATERRITORIAL  CASES. 

the  corporation,  and  to  give  full  receipts,  acquittances  and  releases 
therefor. 

And  to  do  all  things  and  to  perform  all  acts  in  the  name  of  this 
corporation,  and  to  sign  all  documents  and  papers  of  any  descrip- 
tion without  reservation  that  may  be  necessary  or  desirable  in  the 
premises,  or  otherwise,  in  the  prosecution  of  the  business  or  litiga- 
tion of  this  corporation  in  China,  Japan  or  elsewhere,  with  full  power 
of  substitution  and  revocation,  hereby  ratifying  and  confirming  all 
that  its  said  attorney  or  his  substitute  may  have  done  or  may  do  in 
the  future,  the  same  to  all  intents  and  purposes  as  the  said  corpora- 
tion might  or  could  do  vdthout  reservation  or  restriction." 

Notwithstanding  these  extensive  powers  and  duties,  no 
agreement  seems  ever  to  have  been  made  between  the  com- 
pany and  the  defendant  as  to  the  latter's  compensation. 
From  the  time  of  his  arrival  in  China,  however,  the  course 
of  dealing  would  seem  to  imply  an  understanding  that 
defendant  was  to  use  his  discretion  in  expending  so  much 
of  the  corporate  funds  as  might  be  necessary  for  his  per- 
sonal as  well  as  the  company's  needs.  It  appears  that 
during  the  first  eight  months  of  1917  he  drew  about  Tls. 
1,000  per  month  and  that  this  was  duly  reported  to  and 
known  by  the  corporate  officers.  On  July  19,  1917,  the 
Vice-President  of  the  company,  who  is  also  the  sister-in- 
law  of  the  defendant,  sent  him  a  letter  (Ex.  4)  reading 
as  follows: 

"We  wrote  you  last  January  or  February  after  holding  a  Directors* 
meeting,  requesting  you  to  notify  us  what  salary  you  think  would 
be  fair  and  just  for  you  to  receive  for  your  services  for  the  year. 
We  have  never  had  a  reply  to  this  letter  and  would  be  very  grateful 
if  you  would  give  this  your  attention.  So  far  the  books  show 
that  you  are  drawing  at  the  rate  of  about  $8,030  per  year.  This 
seems  to  me  to  be  a  t  ifle  excessive  as  I  should  think  $500  per  month 
would  be  ampla  sala  y  f^r  you  to  live  on  n  Chi  a.  Of  course,  I 
know  nothing  about  your  requirements  there,  but  I  think,  never- 
theless, at  this  time  you  should  not  take  any  more  monay  out  of  the 
firm  than  is  necessary." 

On  the  other  hand  defendant  states,  and  it  is  corrobo- 
rated by  the  company's  bookkeeper,  that  the  New  York 
office  of  the  company  failed  to  answer  his  letters,  and  that 
there  were  numerous  questions  which  he  considered  "vital" 
to  the  interests  of  the  company  pressing  for  settlement; 
that  he  was  unable  to  condense  an  intelligible  statement 


UNITED  STATES  V.  MACDONELL,  JAN.  2  9,  1918.    (j83 

thereof  into  a  cablegram  and  that  since  he  could  receive 
no  reply  by  mail  he  decided  that  the  best  course  for  all 
concerned  was  to  proceed  to  New  York  himself  and  explain 
the  situation  in  person.  He  also  decided  to  take  with  him 
a  Chinese  employee  (Stone  Sung)  who  was  familiar  with 
prices  and  business  conditions  in  China  and  whose  assist- 
ance he  considered  valuable.  He  further  testifies  that  the 
company  was  at  the  time  overdrawn  at  the  bank  and  that 
in  order  to  obtain  funds  for  the  journey  he  was  obliged  to 
use  a  sum  which  had  originally  been  furnished  him  for 
possible  investment  in  a  concern  known  as  the  MacDonell 
Land  Savings  Association;  that  after  investigation  it  was 
decided  not  to  make  such  investment;  that  he  concluded 
not  to  deposit  the  amount  in  the  bank  to  the  credit  of  the 
MacDonell-Chow  Corporation  for  the  reason  that  it  would 
be  used  against  its  overdraft,  and  that  instead  he  deposited 
it  to  the  credit  of  the  MacDonell  Land  Savings  Association 
and  later  drew  it  out  and  used  it  for  the  purpose  of  pur- 
chasing tickets  and  providing  expense  money  for  himself 
and  the  Chinese  in  their  trip  to  New  York.  This  is  the 
item  and  transaction  out  of  which  the  charge  arises. 

Embezzlement  has  been  defined  by  the  Federal  Supreme 
Court  ^  as 

"the  fraudulent  appropriation  of  property  by  a  person  to  whom  such 
property  has  been  intrusted  or  into  whose  hands  it  has  lawfully 
come." 

It  involves  therefore  two  general  ingredients:-  (1) 
wrongful  conversion  to  the  offender's  own  use  and  (2) 
fraudulent  breach  of  a  fiducial  relation.  According  to 
defendant's  contention  the  first  ingredient  is  wanting.  He 
claims  that  he  did  not  convert  the  funds  in  question  to 
his  own  use  but  employed  them  in  company  business,  viz., 
a  necessary  journey  to  New  York  to  adjust  matters  of 
pressing  importance  which  had  failed  to  receive  attention 
by  correspondence.     And  here  it  may  be  observed  that  the 

'Mr.  Justice  Brown,  in  Moore  v.  U.  S.  160  U.  S.  268,  269,  16  S. 
Ct.  294,  40  L.  ed.  422. 

'U.  S.  V.  Harper,  33  Fed.  471,  474;  Reeves  v.  State,  95  Ala.  31, 
41,  11  So.  158. 


684  I  EXTRATERRITORIAL  CASES. 

essence  of  embezzlement,  even  more  than  of  most  crimes, 
is  felonious  intent." 

For  the  same  reasons  defendant  urges  that  there  was  no 
fraudulent  or  other  breach  of  trust  and  cites  as  conclusive 
on  this  point  the  fact  that  he  had  at  no  time  concealed  the 
use  of  the  money  for  the  trip  to  New  York.  Secrecy  in- 
deed is  an  almost  invariable  accompaniment  of  such  fraud. 
In  England  it  appears  that  the  secrecy  is  an  essential  ele- 
ment.    Thus  in  a  leading  case :  * 

"The  prosecutors  were  owners  of  a  vessel,  and  the  prisoner  was 
in  their  service  as  her  master.  The  vessel  was  chartered  to  carry 
culm  from  Swansea  to  Plymouth  for  a  coal  merchant  resident  at 
the  latter  place.  The  culm  when  delivered  at  Plymouth  weighed  215 
tons  and  the  prisoner  received  payment  from  the  coal  merchant  for 
the  weight  accordingly.  When  he  was  asked  for  his  account  by 
an  owner,  he  delivered  a  statement,  acknowledging  the  delivery  of 
210  tons,  and  the  receipt  of  freight  for  so  much.  Being  further 
asked  whether  this  was  all  he  had  received,  he  answered  that  there 
was  a  difference  of  five  tons  between  the  weighing  at  Swansea  and 
the  weighing  at  Plymouth  and  that  he  had  retained  the  balance 
for  his  own  use,  according  to  a  recognized  custom  between  owners 
and  captains  in  the  course  of  business. 

"There  was  no  evidence  of  the  alleged  difference  of  measurement 
in  weighing,  or  of  the  custom  asserted  by  the  prisoner." 

The  Court,  per  Cresswell,  /.,  summed  up  the  case  as 
follows : 

"I  think  that  this  does  not  amount  to  embezzlement.  Embezzle- 
ment necessarily  involves  secrecy;  the  concealment,  for  instance,  by 
the  defendant  of  his  having  appropriated  the  money.  If,  instead 
of  denying  his  appropriation,  a  defendant  immediately  owns  it,  al- 
leging a  right,  or  an  excuse  for  retaining  the  sum  detained,  no 
matter  how  frivolous  the  allegation,  and  although  the  fact  itself 
on  which  the  allegation  rests  were  a  mere  falsification;  as  if  in 
the  present  case,  although  it  should  turn  out  that  there  was  no  such 
difference  as  that  asserted  by  the  captain,  between  the  tonnage  as 
measured  at  Swansea  and  at  Plymouth,  or  that  there  was  no  such 


'■'Arkansas.     Fleener  v.  State,  58  Ark.,  98,  23  S.  W.,  1. 

Michigan.  People  v.  Hurst,  62  Mich.,  276,  28  N.  W.,  838,  Beale's 
Criminal  Cases,  716. 

Neiv  Jersey.     State  v.  Lyon,  45  N.  J.  L.,  272. 

South  Carolina.     State  v.  Butler,  21  S.  C,  353. 

See  also  15  Cyc,  491;  II  Wharton  Criminal  Law,  sec.  1277. 

*  Reg.  V.  Norman,  Carrington  &  Marshman,  501,  41  E.  C.  L.,  274, 
14  Am.  Criminal  Rep.,  326   (1842). 


UNITED  STATES  V.  MACDONELL,  JAN.  29,   1918.         6^5 

custom  as  is  set  up.      I  do  not  say  to  what  species  of  offence  this 
may  amount,  but  in  my  opinion  not  to  embezzlement." 

This  decision  has  been  cited  and  its  doctrine  generally 
followed  in  America,^  tho  the  rule  has  been  laid  down  '^ 
that 

"While  secrecy  or  concealment  may  be  evidence  tending  to  show 
a  criminal  intent,  yet,  if  the  evidence  shows  that  the  criminal  acts 
constituting  embezzlement  were  committed  by  the  defendant,  it  is 
no  defense  that  they  were  committed  openly." 

If  a  case  were  ever  to  arise  where  a  fraudulent  breach  of 
trust  could  b^  "committed  openly"  and  without  concealment 
we  would  not  be  disposed  to  hold  that  the  mere  absence  of 
secrecy  would  constitute  an  excuse.  The  difRculty  is,  how- 
ever, that  fraud  and  frankness  in  such  cases  are  usually  in- 
compatible and  that  when  the  act  is  "committed  openly" 
there  is  necessarily  no  fraudulent  intent.  While,  therefore, 
in  the  absence  of  an  express  Federal  decision,  we  need  not 
follow  the  English  case  above  cited  to  the  extent  of  holding 
that  secrecy  is  an  essential  ingredient  of  embezzlement,  we 
must,  nevertheless,  regard  the  absence  of  secrecy  and  con- 
cealment as  raising  the  presumption  that  no  fraud  was 
intended. 

What  would  constitute  secrecy  and  concealment  has  been 
judicially  indicated: 

"Such  concealment  might  have  been  effected  by  false  entries 
upon  the  books  of  the  company,  or  by  the  failure  to  make  any  entry 
upon  them  at  all,  or  by  representations  known  to  be  untrue,  or  by 
failure  to  report  the  receipt  of  the  money  when  it  was  his  duty  to  do 
so,  or  by  any  device  resorted  to  for  the  purpose  of  disguising  the 
truth  fx'om  the  knowledge  of  his  principal,  and  thus  inducing  it  to 
rest  in  a  false  security."  ^ 

But  nothing  of  the  sort  was  done  here.  Entries  of  the 
transaction  were  regularly  made  at  defendant's  direction. 
Soon  afterward  the  books  were  examined  by  the  complaining 
witness,  and  it  is  admitted  that  no  obstacle  was  placed  in 
the  way  of  such  examination.  It  is  true  that  the  item  in 
question  was  transferred  from  one  account  to  another  but 

'15  Cyc,  495  (note  16),  508  (note  70).  Cf.  Fleener  v.  State,  58 
Ark.,  98,  23  S.  W.,  1. 

'People  V.  Connelly  (Cal.),  38  Pac,  42. 
'  Fleener  v.  State,  58  Ark.,  98,  23  S.  W.,  1. 


686  I  EXTRATERRITORIAL  CASES. 

the  defendant  gives  a  practical  reason  already  mentioned 
for  this  and  one  which  in  no  way  implies  concealment  from 
his  company. 

And  here  it  may  be  observed  that  a  mere  difference  of 
opinion  between  an  accused  and  his  employer  as  to  the 
proper  use  of  latter's  money  will  not  support  a  prosecution 
for  embezzlement  provided  there  is  no  actual  intent  to  con- 
vert the  money  and  commit  a  fraudulent  breach  of  trust. 
In  this  case,  as  we  have  seen,  the  defendant  was  authorized 
"to  expend  such  moneys  of  the  corporation  as  may  be  en- 
trusted to  him  for  the  purposes  of  the  corporation." 

Necessarily  discretion  was  vested  in  some  one  to  determine 
what  these  "purposes"  were.  The  company  officers  do  not 
claim  that  they  ever  gave  the  defendant  instructions  de- 
fining the  phrase  "purposes  of  the  corporation."  The  Vice- 
President  indeed  complained  that  his  expenditures  seemed 
to  be  "a  trifle  excessive"  and  suggested  that  he  "should  not 
take  any  more  money  out  of  the  firm  than  necessary."  But 
in  the  absence  of  specific  instructions  this  also  left  the  de- 
fendant to  determine  what  was  "necessary."  Defendant 
claims  that  he  considered  the  New  York  trip  "necessary" 
and  the  complaining  witness  admits  that  he  never  gave  the 
defendant  any  instructions  to  the  contrary.  It  must  be 
remembered  also  that  defendant  was  a  one-fifth  stock  holder 
and  to  that  extent  the  company's  interests  were  his  own. 

Of  course  if  there  had  been  a  specific  agreement  fixing 
the  amount  of  defendant's  compensation  and  limiting  also 
the  amount  of  his  expenditures  and  he  had  then  exceeded 
the  limit  a  different  case  would  have  been  presented; 
but  the  company  not  only  permitted  the  defendant  to  come 
to  China  without  such  an  agreement  but  conferred  exten- 
sive discretionary  powers  upon  him  and  allowed  him  to 
continue  to  exercise  them  even  after  officers  were  aware 
that  his  expenses  were  what  seemed  to  them  "a  trifle  ex- 
cessive." And  when  after  a  year  or  more  of  such  a  course 
of  dealing  defendant  concluded  that  the  best  interests  of 
the  company  required  him  to  go  to  New  York  and  to  take 
with  him  a  native  of  the  country,  well  versed  in  the  local 
methods  of  doing  business,  we  cannot  say  that  the  use  of 
company  funds  for  carrying  out  such  a  project  shows  an 


UNITED  STATES  V.  JUVENILE  OFFENDER,  FEB.  9,  1917.  687 

intent  to  convert  them  to  his  own  use  or  to  commit  a  fraud- 
ulent breach  of  trust. 

The  company  saw  fit  to  repose  in  the  defendant  a  wide 
discretion  which  it  failed  to  limit  in  any  legal  or  recognized 
way.  Whether  defendant  exercised  it  always  wisely  is  not 
a  question  for  us  to  decide  in  this  proceeding.  If  there  be 
a  civil  liability  it  can  be  determined  in  the  action  which, 
according  to  the  testimony,  is  now  pending  in  the  state  of 
New  York.  But  in  a  criminal  proceeding  like  this  the  pros- 
ecution must  show  such  felonious  intent  beyond  a  reason- 
able doubt.  We  feel  satisfied  under  the  circumstances  of 
this  case  a  conviction  could  not  be  sustained  on  appeal  and 
we  have,  therefore,  no  alternative  but  to  direct  an  acquittal, 
with  costs  de  officio. 

IT  IS  so  ORDERED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  A  Juvenile  Offender. 

[Causes  Nos.  637,  638;  filed  February  9,  1918.] 

SYLLABUS. 
(By   the   Court.) 

1.  CmMINAL  LAW:   PENALTIES  for  false  pretense  and  petit  larceny  in 

this  jurisdiction  may  extend  to  one  year  or  more. 

2.  Id.:  Juvenile  Offenders  are  not,  according  to  the  notions  of  mo- 

dern penology,  to  be  treated  in  the  same  way  as  adults. 

3.  Id.  :  The  Juvenile  Court  Law,  enacted  by  Congress  for  the  Dis- 

trict of  Columbia,  found  necessary  and  suitable  in  this  juris- 
diction and  applied. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

The  accused  appeared  in  his  own  behalf. 

LOBINGIER,  J.: 

The  accused,  who  is  an  American  subject,  born  in  Shang- 
hai of  Filipino  parentage,  pleads  guilty  to  two  informations, 
the  first  charging  him  with 

"the  crime  of  false  pretense  in  that  *  *  *  on  or  about  the  thirty- 
first  day  of  January,  1918,  at  Shanghai,  in  the  Republic  of  China, 
and  within  the  jurisdiction  of  said  Court,"  he  "did  by  false  pretense 


ggg  I  EXTRATERRITORIAL  CASES. 

and  intent  to  defraud,  obtain  a  pair  of  shoes,  of  the  value  of  less 
than  thirty-five  dollars." 

The  second  charges  him  with 

"the  crime  of  Petit  Larceny,  in  that  *  *  *  on  or  about  the  fif- 
teenth day  of  December,  1917,  at  a  dw^elling  house  known  as  139 
Paoshang  Road,  in  Shanghai,  in  the  Republic  of  China,  and  within 
the  jurisdiction  of  said  Court,"  he  "did  feloniously  take  and  carry 
away  a  blue  cloth  coat,  the  personal  property  of  a  Chinese  woman, 
whose  name  is  unknown,  of  the  value  of  less  than  thirty-five  dollars." 

The  complaining  witnesses  in  each  cause  are  defendant's 
father  and  mother,  each  of  whom,  testifying  on  the  ques- 
tion of  the  proper  penalty,  relates  a  harrowing  story  of 
youthful  incorrigibility  and  lawless,  irresponsible  conduct 
for  which  there  appears  to  be  no  remedy  except  authorita- 
tive discipline ;  for  the  father  is  a  mariner  and  necessarily 
absent  from  home  a  considerable  portion  of  the  time,  and 
the  mother  states  that  she  is  absolutely  unable  to  control 
the  accused. 

Both  of  the  offenses  charged  and  admitted  in  these  pro- 
ceedings are  serious,  each  justifying  penal  servitude.^  In 
this  case,  however,  the  offender,  according  to  his  parents, 
is  but  fifteen  years  old  and  it  is  contrary  to  the  spirit  of 
modern  penology  to  impose  upon  juvenile  offenders  (whose 
need  is  reclamation  and  reform  rather  than  punishment) 
the  penalties  intended  for  adults.  As  the  result  of  a  grow- 
ing sentiment  in  that  direction  juvenile  courts  have  been 
established  in  many  parts  of  the  United  States  and  special 
laws  have  been  enacted  for  the  juvenile  offender.     Such 

^  False  Pretense.  Act  of  Congress  of  June  30,  1902,  Sess.  II,  31 
U.  S.  Stats,  at  Large,  Ch.  854,  (32  U.  S.  Stats,  at  Large,  Ch.  1329, 
Dist.  of  Col.  Code),  sec.  842  (maximum  penalty  one  year  and  fine); 
Act  of  Congress  of  March  3,  1899,  30  U.  S.  Stats,  at  Large,  Ch.  429, 
Tit.  I,  sec.  54,  Alaska  Compiled  Laws,  sec.  1934  (maximum  penalty  five 
years). 

Petit  Larceny.  Act  of  Congress  of  June  30,  1902,  32  U.  S.  Stats, 
at  Large,  Pt.  I,  p.  535  (Dist.  of  Col.  Code),  sec.  827  (maximum  penalty 
one  year  and  fine)  ;  Act  of  Congress  of  March  3,  1899,  Sess.  Ill,  30 
U.  S.  Stats,  at  Large,  Ch.  429,  Tit.  I,  sec.  41,  (maximum  penalty  one 
year  and  fine);  Fed.  Pen.  Code,  (1910),  sec.  287  (maximum  penalty 
one  year  and  fine). 


UNITED  STATES  V.  JUVENILE  OFFENDER,  FEB.  9,  1918.    689 

a  statute  -  was  passed  by  Congress  in  1906  and,  while 
primarily  intended  for  the  District  of  Columbia,  seems  fully 
applicable  here  by  virtue  of  the  prior  enactment  extending 
over  Americans  in  China  "the  laws  of  the  United  States 
*  *  *  so  far  as  is  necessary  to  execute  such  treaties" 
and  "so  far  as  such  laws  are  suitable,"  ^  etc. 

The  court  which  is  empowered  to  enforce  and  apply  said 
statute  (and  which  in  this  jurisdiction  would  necessarily  be 
this  because  none  other  is  provided  and  the  one  nearest 
corresponding  must  therefore  be  utilized  ^)  is  expressly 
authorized 

"to  defer  sentence,  at  its  discretion,  in  the  case  of  any  juvenile  of- 
fender under  the  age  of  seventeen  years,  and  parole  such  child  under 
the  care  of  the  chief  probation  officer  for  a  probation  period  discre- 
tionary with  him,  who  shall  cause  said  child  to  return  to  court  at  the 
end  of  such  term  either  for  sentence  or  dismissal."  ° 

The  Supreme  Court  has  indeed  decided  ^  that  the  Federal 
Courts  have  no  inherent  power  to  suspend  sentences,  but 
that  decision  would  clearly  not  apply  to  cases  arising  under 
a  statute  which,  like  this,  expressly  provides  for  such  sus- 
pension. We  hold  that  the  statute  is  both  necessary  and 
suitable  for  cases  like  the  one  at  bar  because  the  laws 
above  referred  to,  prescribing  the  penalty,  are  wholly  un- 
suitable. We  feel  also  that  the  offender,  being  a  Filipino, 
can  most  properly  be  placed  in  the  custody  of  the  Philippine 
authorities. 

Final  sentence  is  accordingly  suspended  in  these  causes, 
and  the  Philippine  Director  of  Prisons,  Dr.  Waller  H.  Dade, 
is  hereby  named  as  probation  officer  to  whose  care  and 
custody  the  accused  is  accordingly  committed  for  a  proba- 

=  34  U.  S.  Stats,  at  Large,  pt.  I,  p.  73,  Dist.  of  Col.  Code,  App. 
sec.  5. 

'  12  U.  S.  Stats,  at  Large,  p.  73,  sec.  4;  U.  S.  Rev.  Stats.,  sec.  4086; 
Biddle  v.  U.  S.,  156  Fed.  759,  ante,  p.  120. 

*  Alaska  Gold  Mining  Co.  v.  Ebner,  2  Alaska,  611.  Cf.  U.  S.  ex  rel. 
Raven  v.  McRae,  No.  586,  ante,  p.  655. 

'  Act  of  Congress  of  March  19,  1906,  34  U.  S.  Stats,  at  Large,  Pt. 
I,  p.  73   (D.  C.  Code,  Appendix),  sec.  5. 

°  Ex  Parte  U.  S.,  242  U.  S.,  27,  61  L.  ed.,  129. 

14008  O.  W. 44 


690  I  EXTRATERRITORIAL  CASES. 

tion  period  discretionary  with  said  officer  but  not  exceeding 
three  years,  during  which  time  the  accused  may,  in  the  dis- 
cretion of  said  probation  officer,  be  confined  in  any  penal  or 
reformatory  institution  of  the  Philippine  Government  under 
the  control  and  direction  of  said  officer.  Pending  his 
transfer  to  the  custody  of  said  officer  the  accused  is  re- 
manded to  the  custody  of  the  United  States  Marshal  for 
China.' 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Mitchell,  Petitioner,  v.  Mitchell,  Respondent. 
[Cause  No.  603;  filed  February  14,  1918.] 

SYLLABUS. 

(By  the  Court.) 

1.  ADULTERY.     Unexplained  occupancy  of  the  same  bed  with  another, 

not   a   spouse,  of   the  opposite   sex,   raises   the   presumption   of 
adultery  on  the  part  of  a  spouse. 

2.  Id.:  Evidence  received  and  found  sufficient  to  establish  such  oc- 

cupancy. 

'  "So  soon  after  our  article  on  the  need  of  new  methods  of  dealing 
with  juvenile  offenders  in  Shanghai  as  well  as  the  'won't  works,'  it 
is  interesting  to  see  that  the  United  States  Court  has  had  such  a 
case  before  it,  which  it  has  been  able  to  dispose  of  very  satisfactorily 
by  sending  the  offender  to  a  reformatory  in  Manila  for  any  necessary 
period  up  to  three  years.  Long  before  that,  it  is  to  be  hoped,  the 
youth  will  have  seen  the  folly  of  his  ways.  In  having  an  available 
reformatory  at  Manila  and  laws  which  enable  juvenile  offenders  to 
be  sent  there  the  American  community  is  more  fortunate  than  others. 
The  British  have  nothing  to  offer  but  gaol,  and  both  police  and  ma- 
gistrate are  naturally  most  reluctant  to  send  boys  there  who,  under 
the  wiser  treatment  which  most  civilized  communities  have  now  in- 
stituted, might  be  made  useful  members  of  society.  The  difficulty  is, 
of  course,  that  there  are  not  enough  of  such  cases  to  warrant  building 
a  reformatory.  Some  years  ago  one  was  built  privately  and  presented 
to  the  Hongkong  Government,  which  eventually  found  a  use  for  it  by 
turning  it  into  a  Door  of  Hope.  Still,  juvenile  offenders  exist  and 
will  not  tend  to  diminish  in  number.  The  industrial  homes  suggested 
for  'won't  works'  with  a  separate  wing  for  juveniles  might  meet  the 
need."  [North  China  Daily  News  (British  Official  Organ),  Feb.  11, 
1918.] 


MITCHELL  V.  MITCHELL,  FEB.  14,  1918.  691 

Messrs.  Jeryiigan,  Fessenden  &  Rose,  by  Mr.  Rose,  for 
the  petitioner. 

No  appearance  for  the  respondent. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  appeared 
as  amicus  curiae  and  expressed  no  objection  to  the  decree. 

LOBINGIER,  J.: 

The  petition  in  this  cause  alleges 

"1.  That  petitioner  is  an  American  citizen  at  present  residing  at 
Tientsin,  China,  and  has  resided  continuously  in  China  since  Sep- 
tember, 1910. 

2.  That  on  or  about  the  11th  day  of  November,  1905,  your  petitioner 
was  lawfully  married  to  the  said  respondent,  an  American  citizen, 
at  Wakefield,  Rhode  Island,  United  States  of  America. 

3.  That  after  the  said  marriage  your  petitioner  lived  and  cohab- 
ited with  his  said  wife  until  May,  1914,  and  your  petitioner  and 
respondent  are  still  husband  and  wife. 

4.  That  on  or  about  the  10th  day  of  May,  1914,  at  Wenchow,  China, 
the  said  respondent  committed  adultery  with  one  Bjarne  Junl,  a  native 
of  Bergen,  Norway." 

No  answer  has  been  filed  to  this  petition,  but  a  letter 
(Ex.  "B")  addressed  to  petitioner's  counsel  and  bearing  a 
signature  identified  as  respondent's  is  produced  which 
acknowledges  receipt  of  a  "copy  of  petition  and  summons." 
Service  by  publication,  in  accordance  with  this  Court's  order 
of  July  17,  1917,  is  also  shown  ^  by  the  affidavit  of  the 
publisher  and  the  letter  above  mentioned  announces  re- 
spondent's intention  not  to  appear. 

In  support  of  his  averments  petitioner  testifies  that  in 
September,  1913,  he  moved  to  Wenchow  with  his  wife  and 
that  the  other  party  named  in  the  petition  was  the  chief 
officer  on  the  ship  conveying  them  to  that  point;  that 
respondent  and  said  party  became  acquainted  at  that  time 
and  that  thereafter  the  man  in  question  was  a  frequent 
visitor  at  their  home  and  remained  there  much  of  the  time 
when  the  petitioner  was  absent  on  necessary  business; 
that  at  first  he  suspected  nothing  wrong  but  later  remon- 


'  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  Tit.  I,  sec.  48. 


592  I  EXTRATERRITORIAL  CASES. 

strated  and  that  on  the  night  of  the  date  above  mentioned 
he  was  awakened  by  a  noise  in  an  adjacent  room  where 
his  wife  slept;  that  he  called  to  her,  and  not  receiving  a 
satisfactory  answer  went  to  her  room,  turned  on  a  light 
and  found  the  party  in  question  in  bed  with  the  respondent, 
after  which  he  no  longer  cohabited  with  her  but  sent  her 
away. 

The  evidence  of  petitioner's  three  other  witnesses  cor- 
roborates him  as  to  the  familiar  and  suspicious  relations 
of  respondent  and  the  other  man  and  we  are  disposed  also 
to  agree  with  the  contention  of  petitioner's  counsel  that 
respondent's  failure  to  contest  this  proceeding  after  actual 
notice  and  ample  time  for  so  doing,  especially  in  view  of 
its  very  damaging  charges,  not  all  of  which  are  quoted 
above,  constitutes  further  corroboration  as  has  been  held 
already  by  this  Court.-  Letters  from  respondent  are  also 
produced  which  amount  very  nearly  to  a  tacit  confession 
of  wrong  doing. 

The  circumstances  detailed  by  the  petitioner  constitute  a 
ground  for  divorce  a  vinculo  matr'imonii  under  Acts  of 
Congress  '■'■  applicable  to  this  jurisdiction.  As  is  said  in  a 
well  knov^Ti  work : 

"Adultery  may  be  established  by  the  fact  that  the  parties  occupied 
the  same  room  at  night  or  the  same  bed,  in  the  absence  of  an  ex- 
planation  of  the   incriminating  circumstance."  * 

The  Court,  therefore,  finds  from  the  evidence  that  the 
averments  above  excerpted  from  the  petition  are  true ; 
that  respondent  did  commit  adultery  as  there  charged  and 
that  petitioner  has  never  condoned  the  offense  and  is  en- 
titled to  the  relief  prayed. 

It  is  accordingly  considered  and  decreed  that  the  bonds 
of  matrimony  heretofore  existing  between  the  petitioner 
and  respondent  be  and  they  thereby  are  dissolved  absolutely 
and  that  a  decree  of  divorce  a  vinculo  matrimonii  be  and 
hereby  is  granted  to  the  petitioner.     The  respondent  not 

-  Steehler  v.  Steehler,  No.  461. 

'  Act  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at  Large,  Ch.  854, 
(Dist.  of  Columbia  Code),  sec.  966.  Cf.  Act  of  Congress  of  June  6, 
1900,  Sess.  I,  31  U.  S.  Stats,  at  Large,  Ch.  786,  Tit.  II,  sec.  467. 

*  14  Cyc,  696,  citing  numerous  authorities. 


IN  RE  wade's   will,   FEB.    2  0,    1918.  g93 

having  formally  appeared,  the  Court  withholds  for  the 
present  any  award  of  other  relief  against  her  including 
costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  John  J.  Wade's  Will, 

[Cause  No.  531;  filed  February  20,  1918.] 

SYLLABUS. 
(By   the   Court.) 

I.WILLS:     Construction.     The    chief    guide    in    testamentary    con- 
struction is  the  testator's  intent. 

2.  Id.  :    Defective   Designation.     Where,   as   is  frequently   the   case, 

such  intention  is  imperfectly  or  defectively  expressed,  as  by 
incorrect  designation  of  the  beneficiary,  the  intent  will  never- 
theless be  carried  out  as  nearly  as  possible  if  it  can  be  as- 
certained. 

3.  Id.  :   Rule  Applied.     A  designation  of  "my  cousin  Bernice  Seldon 

of  West  Sommerville,  Mass.,"  held  applicable  to  Bernice  Drisko 
v^hose  father's  given  name  is  Seldon,  upon  proof  that  she  v/as  the 
sole  cousin  of  the  testator,  named  Bernice,  in  that  place,  and 
that  she  vi^as  a  favorite  of  his. 

4.  Id.  :   An  Administrator's  Fee  of  seven  per  centum  of  the  total 

assets   considered   sufficient   under  the   circumstances. 

Messrs.  Burdette,  Warclwell  &  Ives,  of  Boston,  for  the 
claimant. 

No  appearance  contra. 

Ralph  A.  Frost,  Esq.,  administrator  cum  testamento  an- 
nexo,  for  the  estate. 

LOBINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  petition  of 
the  executors  and  administrator  cum  testamento  annexo 
for  a  construction  of  the  will  as  regards  the  identity  of 
its  chief  beneficiary  and  upon  the  subsequent  petition  for 
approval  of  the  final  account,  final  distribution  of  the  assets 
and  award  of  compensation  to  the  personal  representatives. 

The  will  names  as  its  chief  beneficiary  "my  cousin  Ber- 
nice Seldon  of  West  Sommerville,  Mass.,  U.  S.  A."  De- 
positions taken  in  Boston  upon  a  commission  issued  under 


g94  I  EXTRATERRITORIAL  CASES. 

seal  of  this  Court  show  that  the  testator  had  no  relative 
of  that  name  in  said  place  or  elsewhere  but  did  have  a 
second  cousin  with  whom  he  corresponded  (having  re- 
ceived from  her  a  letter  signed  "Gertrude,  Seldon  &  Ber- 
neese"  dated  less  than  two  months  before  his  death)  named 
Gertrude  L.  Drisko  whose  husband's  first  name  is  "Seldon" 
and  who  has  a  four-year  old  daughter  named  Bernice  G. 
Drisko.  In  another,  written  in  1915  to  Mrs.  Drisko  and 
attached  to  one  of  the  depositions  above  mentioned,  the 
testator  twice  refers  to  "Bernice"  in  terms  of  endearment 
and  it  appears  that  Mrs.  Drisko  received  a  letter  from  him 
as  late  as  March,  1916. 

The  will  was  prepared  in  extremis,  being  dated  only  the 
day  before  testator's  death,  and  one  of  the  subscribing  wit- 
nesses, Mr.  Kemp,  testified  that  the  testator,  while  mentally 
sound,  was  very  tired  and  when  asked  to  whom  he  wished  to 
leave  his  property  replied  "to  my  cousin — Bernice  Seldon — 
of  West  Sommerville,  Mass.,"  the  spelling  of  the  town  (with 
two  "m's")  being  that  of  the  draughtsman  rather  than  the 
testator's.  Altho  notice  of  the  hearing  on  probate  of  the 
will  and  notice  to  creditors  to  present  their  claims  M^ere 
both  duly  published,  no  other  claimant  as  beneficiary  than 
Bernice  G.  Drisko  has  yet  appeared  and  the  question  is 
therefore  presented  whether  she  is  entitled  to  the  benefits 
of  the  instrument. 

Mistakes  in  the  name  of  an  intended  beneficiary  are  not 
infrequent  on  the  part  of  testators  especially  where,  as  in 
the  present  case,  the  will  is  executed  at  the  end  of  a  long 
illness.^  Indeed,  as  was  observed  by  a  celebrated  English 
Judge  -  in  awarding  to  an  eldest  son  named  Robert  a  devise 
to  a  second  by  that  name  who  was  proved  not  to  exist : 

"It  has  generally  been  found,  where  mistakes  have  been  assumed 
to  have  been  made,  either  in  the  name  or  description  of  the  devisee, 
or  the  property  devised,  that  the  mistake  has  been  in  the  name,  and 
not  in  the  description.  *  *  *  If  a  party  means  to  describe  a 
particular  object  w^hich  he  has  in  view^,  he  is  more  likely  to  be  cor- 
rect in  descriptions  than  in  names." 

'  Morse  v.  Stearns,  131  Mass.,  389. 

■  Lord  Abinger,  C.  B.,  in  Bradshaw^  v.  Bradshaw^,  2  Y  &  Col.  (Exch.), 
86;  6  L.  J.  Eq.  (N.  S.),  1  (1836),  followed  in  Thayer  v.  City  of 
Boston,  15  Gray   (Mass.),  347   (1860). 


i 


IN  RE   wade's   will,   FEB.    20,    1918.  695 

But  the  courts  do  not  permit  such  a  mistake,  where 
clearly  apparent,  to  vitiate  a  testament  otherwise  valid. 
As  was  said  in  one  case :  ^ 

"It  is  a  general  rule  that  where  the  naine  or  description  of  a 
legatee  is  erroneous,  and  there  is  reasonable  doubt  as  to  the  person 
intended  to  be  named  or  described,  the  mistake  will  not  disappoint 
the  bequest.  The  error  may  be  rectified  and  the  true  intent  as- 
certained in  two  ways:  First,  by  the  context,  and  in  some  cases  by 
parol  testimony;  thus  an  error  in  the  name  of  the  legatee  may  be 
obviated  by  the  accessary  of  his  description,  as  where  a  legacy  is 
given  'to  my  name-sake  Thomas,  second  son  of  my  brother,'  and 
the  brother  had  no  son  named  'Thomas,'  but  his  second  son  is 
named  William,  the  latter  will  take." 

The  fundamental  rule  and  guide  in  the  construction  of 
wills  is  the  testator's  intent  and  if  this  can  be  gathered 
either  from  the  instrument  itself  or  from  extrinsic  sources 
it  will  be  carried  out  if  possible  even  tho  the  intent  may 
have  been  imperfectly  or  defectively  expressed.  Among 
the  numerous  decisions  applying  this  principle  only  those 
based  on  similar  facts  need  be  noted. 

Tho  the  will  named  as  beneficiary  "Cornelia  Thompson" 
the  bequest  was  awarded  by  the  Chancellor  (Kent)  to 
Caroline  Thomas.  The  averments  in  the  bill,  which  were 
admitted,  show  considerable  resemblance  to  the  facts  in 
this  case,  viz. : 

"That  the  testatrix  had  been  dead  upwards  of  two  years,  and 
that  no  person  by  the  name  of  Coi-nelia  Thompson  had  appeared  to 
claim  the  legacy,  and  that  they  believed  and  admitted,  that  the  plain- 
tiff was  the  person  intended;  for  she  was  a  great  favorite  with  the 
testatrix,  and  it  was  understood  and  believed  that  some  provisions 
by  will  was  to  be  made  for  her.  That  a  great  friendship  had  existed 
between  the  testatrix  and  the  mother  of  the  plaintiff,  who  died 
some  time  before  the  testatrix."  ■* 

Where  a  will  bequeathed  an  annuity  "to  my  sister  Hono- 
rine  Degrand  of  Aix  in  France"  and  a  codicil,  which  re- 
voked all  the  bequests  of  the  will,  bequeathed  an  annuity 
to  "Miss  Delphine  Degrand  of  Aix  in  Provence,"  the  an- 
nuity was  awarded  to  the  former  upon  proof  that  she  was 

'  Lowe  V.  Carter,  55  N.  C.  352,  358,  citing  Williams,  Exrs.  736. 
'Thomas   v.    Stevens,   4   Johns.    Ch.    (N.    Y.)    607    (1820),    citing 
Beaumont  v.  Fell,  2  P.  Wms.  140;  Bradwin  v.  Harpur,  Amb.  374. 


696  I  EXTRATERRITORIAL  CASES. 

the  only  sister  who  had  iever  lived  in  Aix  and  that,  tho 
testator  once  had  a  sister  named  Delphine,  she  was  long 
since  deceased.  The  Court  (per  Metcalf,  J.)  said  that  the 
testator 

"erroneously  gave  to  the  legatee  the  name  of  Delphine;  but  he 
correctly  described  her  as  of  Aix  in  Provence.  The  bequest  which 
he  nominally  made  to  Delphine  must  therefore  be  paid  to  Honorine, 
for  whom  it  was  intended."  * 

Where  the  testatrix  had  two  nephews,  Joseph  White 
Sprague  and  Joseph  Sprague  Stearns,  a  bequest  therein  "to 
my  nephew  J.  S.  Sprague"  was  held  by  inference,  and 
without  the  aid  of  extrinsic  evidence,  to  belong  to  the 
former. 

"Sometimes  it  happens,"  observes  the  Court,*  "that  a  will  is 
made  when  the  testator  is  in  extremis,  when  his  voice  is  feeble 
and  low,  and  his  enunciation  indistinct.  Sometimes  a  beneficiary 
is  spoken  of  by  the  testator  by  an  abbreviated  or  by  a  pet 
name.  The  reported  cases  show  many  instances  of  these  and  other 
kinds  of  difficulties  and  obscurities;  but  no  facts  in  this  case  make 
it  necessary  or  even  proper  to  refer  to  all  the  cases  which  have  oc- 
curred, nor  to  the  rules  which  it  has  been  found  necessary  to  es- 
tablish in  determining  them.  It  is  sufficient  for  us  to  say  that  the 
bequest  is  to  *J.  S.  Sprague,'  with  the  use  of  initials  only  to  indicate 
the  Christian  name  of  the  legatee;  that  that  designation  is  more 
nearly  applicable  to  Joseph  White  Sprague  than  to  Joseph  Sprague 
Stearns,  inasmuch  as  the  surname  corresponds,  and  the  variance 
is  only  in  the  initial  letter  of  the  middle  name.  It  cannot  be  doubted 
that  the  bequest  was  intended  for  one  of  these  nephews;  and,  taking 
all  the  extrinsic  evidence  of  relation  to  the  parties  and  circumstances 
into  consideration,  there  is  not  sufficient  to  control  the  inference  in 
favor  of  the  nephew  Sprague." 

A  bequest  to  "Joseph  C.  Link's  children,  Mary  and  Sethe 
Link"  was  awarded  in  part  to  Sarah,  familiarly  called 
"Sadie,"  upon  a  showing  that  she  was  the  only  daughter 
other  than  Mary.^ 

A  testatrix  named  as  beneficiaries  all  of  her  brother's 
children  except  one  whose  name  was  David.     The  will  men- 

=  Thayer  v.  City  of  Boston,  15  Gray  (Mass.),  347  (1860),  citing 
Smith  v.  Coney,  6  Ves.,  42. 

"Morse  v.  Stearns,  131  Mass.,  389   (1881). 

"  Lanning  v.  Sisters  of  St.  Francis,  35  N.  J.  Eq.,  392  (1882).  The 
report  contains  a  valuable  note  on  the  point  under  discussion. 


IN  RE  WADE'S  WILL,  FEB.   20,   1918.  697 

tioned  "Dickey,"  but  as  there  was  no  child  by  that  name 
the  bequest  was  awarded  to  David.^ 

So  a  legacy  for  "Otto,  the  child  of  Martha  Kornetzky" 
was  given  to  Arthur,  who  was  shown  to  be  the  only  child 
of  the  person  named  tho  he  was  also  the  testator's  illegiti- 
mate son.     The  Court  said 

"that  is  certain  which  can  be  made  certain.  There  was  no  such 
child  but  this  one  and  it  is  evident  that  the  child  was  in  the  mind 
of  the  testator  and  that  satisfies  our  statute."" 

A  testator  named  Bradford  executed  an  holographic  will 
which  recited  "I  institute  my  brother  James  Brother  heir 
to  my  whole  estate."  The  property  was  distributed  to 
James  Bradford  because,  as  the  Court  observed, 

"The  testator  had  but  one  'brother  James;'  hence  the  addition  of 
the  word  'Brother'  cannot  possibly  be  anything  else  than  an  in- 
advertent repetition  of  the  word  'brother.'  "  ^° 

A  bequest  to  "S.  G.  son  of  Captain  J.  F.  S."  was  awarded 
to  "S.  G.  son  of  Captain  J.  F.  H."after  a  showing  of  the  for- 
mer's non-existence.^^ 

It  will  be  seen  that  in  few  of  the  cases  above  reviewed  ^- 
is  the  evidence  of  mistake  stronger  than  here,  and  in  view 
of  the  testator's  enfeebled  physical  condition,  his  evident 
fondness  for  his  cousin's  child  and  the  inapplicability  of 
the  designation  to  any  other  person,  the  presumption  seems 

'Acton  V.  Lloyd,  37  N.  J.  Eq.  5  (1883).  Cf.  Taylor  v.  Tolen,  38 
N.  J.  Eq.  91. 

*/n  re  Gorkow's  Estate,  20  Wash.  563,  56  Pac.  385. 

"  Succession  of  Bradford,  124  La.  44,  49  So.  972. 

"  Hawkins  v.  Garland's  Admr.  76  Va.  149. 

"  Cases  are  also  numerous  where  bequests  to  charitable  institutions 
by  incorrect  names  have  been  upheld  on  a  principle  analogous  to 
that  of  the  cy  pres  doctrine: 

Arkansas.     McDonald  v.   Shaw,  81  Ark.  235,   S.  W.   952. 

Nebraska.  Second  United  Presbyterian  Church  v.  First  United 
Presbyterian  Church,  71  Neb.  563,  99  N.  W.  252. 

New  Hampshire.     Trustees  v.  Peaslee,  15  N.  H.  317. 

New  Jersey.  American  Dramatic  Fund  Assoc,  v.  Lett,  42  N.  J.  Eq. 
43,  6  Atl.  280.     Van  Nostrand  v.  Board,  59  N.  J.  Eq.  19,  44  Atl.  472. 

Neiv    York.     Lefevre  v.   Lefevre,   59   N.   Y.   434. 

Cf.  Gilmer  v.  Stone,  120  U.  S.  586,  30  L.  ed.  734. 


698  I  EXTRATERRITORIAL  CASES. 

very  strong  that  inadvertently  he  linked  the  first  name  of 
his  intended  beneficiary  to  that  of  her  father,  forgetting 
at  the  moment  her  surname. 

But  while  such  appears  to  be  the  inevitable  conclusion, 
and  we  are  prepared  so  to  find  upon  the  evidence  before 
us,  we  desire  nevertheless,  especially  in  view  of  the  dis- 
tance from  those  who  might  be  interested,  to  give  every 
possible  opportunity  for  other  claimants  to  appear  or  to  be 
discovered.  Final  distribution  is  therefore  postponed  until 
June  1,  1918,  and  meanwhile  further  effort  will  be  made  to 
locate  other  claimants  answering  to  the  description  in  the 
will.  If  none  such  appears  and  proves  a  better  title  by  the 
date  named,  it  is  ordered  that  final  distribution  be  made 
to  the  duly  appointed  guardian  of  the  said  Bernice  G. 
Drisko.  And  upon  the  production  and  filing  of  a  receipt  in 
full  from  said  guardian,  the  executors  and  administrator 
cum  testamento  aniiexo  will  stand  discharged  and  the  estate 
will  be  considered  closed. 

Meanwhile  their  final  account  is  approved  ,and,  it  ap- 
pearing that  notice  to  creditors  has  been  duly  published  and 
that  the  time  for  filing  claims  has  expired,  it  is  further 
ordered  that  all  claims  not  filed  within  said  time  be  and 
the  same  are  hereby  barred. 

An  allowance  of  ten  per  centum  of  the  assets  of  the  estate 
is  suggested  as  a  proper  fee  for  the  services  of  the  personal 
representatives ;  but  we  do  not  find  any  case  in  which  this 
Court  has  allowed  that  much.  The  administrator,  indeed, 
is  a  lawyer  and  has  performed  his  duties  with  fidelity  and 
efficiency;  but  they  do  not  appear  to  have  required  the 
exercise  of  much  professional  skill  and  knowledge.  More- 
over, it  was  understood  at  the  time  of  his  appointment  that 
there  would  be  no  extra  allowance  for  legal  services  and 
that  the  executors  would  ask  nothing.  Under  these  cir- 
cumstances it  is  believed  that  a  commission  of  seven  per 
centum  of  the  total  assets,'-^  which  is  still  more  than  this 
Court  usually  allows,  will  afford  fair  compensation  to  the 
administrator,  and  it  is  accordingly  awarded. 

"  Act  of  Congress  of  June  6,  1900,  sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  tit.  II,  sec.  869. 


IN  RE  LEE'S  WILL,  MARCH  30,  1918.  699 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Robert  Edmund  Lee's  Will. 

[Cause  No.  608;  filed  March  30,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  CITIZENSHIP  by  birth  carries  with  it  certain  privileges  not  avail- 
able to  naturalized  citizens. 

2  Id.:  Foreign  Residence.  Among  these  is  greater  latitude  as  re- 
gards residence  abroad. 

3.  Id.  :  The  Modes  of  Expatriation  prescribed  by  the  Congressional 

Act  of  1907  are  exclusive. 

4.  Id.  :    Naturalization.     The    benefits    of    a    father's    naturalization 

accrue  to  his  minor  children. 

5.  Id.  :  Extraterritoriality.     American  citizens  residing  in  extrater- 

ritorial countries  remain  ''subject  to  the  jurisdiction  *  *  * 
of  the  United  States"  to  a  much  greater  extent  than  those 
residing  in  other  foreign  countries. 

6.  EVIDENCE:    COPIES  OF  PARISH  REGISTERS,  duly  authenticated,  and 

admissible  in  evidence  in  the  jurisdiction  vi^here  they  are  issued, 
will  be  admitted  here  to  prove  an  act  recorded  therein. 

Ralph  A.  Frost,  Esq.,  and  Jeimigan,  Fessenden  &  Rose  by 
Mr.  Rose,  for  proponent. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  appeared 
for  the  government  but  offered  no  objection  to  the  decree. 

LOBINGIER,  J.: 

The  petition  in  this  cause  contains  the  usual  averments 
for  the  probate  of  a  will  alleging  inter  alia  "that  Robert 
Edmund  Lee,  an  American  citizen,  *  *  *  died  on  July 
4,  1917,  in  the  city  of  Kiukiang."  Evidence  in  support 
of  the  petition  is  presented  in  the  form  of  depositions,  one 
by  decedent's  wife  and  another  by  Ralph  A.  Frost,  Es- 
quire, who  testifies  that  the  deceased  was  "born  in  St.  Louis, 
Mo.,  about  18G7."  A  document  emanating  from  the  Consul- 
General  of  the  district  where  the  deceased  lived  and  pre- 
sented by  the  District  Attorney,  who  was  requested  by 
the  Court  to  appear  in  the  Government's  behalf  in  this 
cause,  contains  the  following  recital: 

"Robert  Edmund  Lee  was  born  on  April  22,  1868,  at  St.  Louis, 
Missouri.     His  father,  Alia  Lee,  a  Chinaman,  was  married  to  Sarah 


700  I   EXTRATERRITORIAL  CASES. 

Lee,  an  American  woman,  and  he,  Alia  Lee,  was  naturalized  in   St. 
Louis  Criminal  Court  on  September  17,  1868." 

In  addition  to  the  foregoing  the  proponent  presents  a 
copy  (Ex.  "H"-9)  of  the  Parish  Register  of  Grace 
(Episcopal)  Church  of  St.  Louis,  authenticated  by  the  priest 
in  charge,  from  which  it  appears  that  one  Robert  E.  Lee 
was  baptized  therein  on  June  2,  1867.  The  document 
further  recites  that  he  was  born  on  April  20  of  the  same 
year  and  that  his  parents  were  Alia  and  Sarah  Lee.  Copies 
of  such  registers  are  admissible  in  England  and  in  a  major- 
ity of  American  jurisdictions  which  have  passed  on  the 
question.^  They  are  not  admitted  in  Massachusetts,  but 
there  a  civil  registry  of  such  facts  has  been  kept  according 
to  law  since  1639  and  it,  and  not  the  parish  registry,  is 
the  official  one.-  There  being  no  civil  registry  provided 
in  this  jurisdiction,  the  decedent  not  having  been  born 
here  anyway,  and  the  document  being  admissible  in  the 
jurisdiction  where  it  was  issued  ^  we  hold  that  said  cer- 
tificate is  competent  evidence  of  decedent's  baptism  on  the 
date  and  at  the  place  recited  therein. 

It  is  true  that  the  said  document  does  not  recite  the  place 
of  decedent's  birth  but  there  is  offered  in  evidence    (Ex. 

^England.  Draycott  v.  Talbot,  3  Brown,  P.  C.  (2nd  ed.),  564;  May 
V.  May,  2  Strange,  1073;  Wihen  v.  Law,  3  Starkie,  63;  Doe  v.  Barnes, 
1  M.  &  Rob.,  389;  Starkie,  Evidence  (4th  Eng.  ed.),  299,  note  f. 

Federal.  "The  entries  in  the  register  of  burials,  and  in  the  family 
Bible,  are  admissible  evidence  in  a  case  like  the  present;  and  if  there 
were  no  other  proof  of  the  death  of  Charles  Willing,  the  ancestor 
of  the  complainants,  they  might  be  considered  as  showing  his  death 
in  1788."     Lewis  v.  Marshall,  5  Pet.,  470,  8  L.  ed.,  195. 

Louisiana.     Succession  of  Justus,  48  La.  Ann.,  1096,  20  So.,  680. 

Michigan.  Hunt  v.  Supreme  Council,  64  Mich.,  671,  31  N.  W.,  576; 
Durfree  v.  Abbott,  61  Mich.,  471,  28  N.  W.,  521;  Hutchins  v.  Kimmell, 
31  Mich.,  125. 

Missouri.     Childress  v.  Cutter,  16  Mo.,  24,  46. 

Neiv  Jersey.  Supreme  Assembly  v.  McDonald,  59  N.  J.  L.,  248, 
35  Atl.,  1061. 

Philippines.     Adi-iano  v.  De  Jesus,  23  Phil.,  350. 

-  Kennedy  v.  Doyle,  10  Allen,  161,  Thayer's  Cases  on  Evidence,  437. 

'  Childress  v.  Cutter,  16  Mo.,  24,  46. 


IN  RE  lee's  will,  MARCH   30,   1918.  701 

"B")  a  certificate  issued  by  the  Clerk  of  the  Criminal  Court 
of  St.  Louis  on  September  17,  1868,  reciting  that 

"Alia  Lee,  a  native  cf  China,  who  applies  to  be  admitted  a  citizen 
of  the  United  States,  comes  and  proves  to  the  satisfaction  of  the 
Court  that  he  has  resided  in  the  United  States  at  least  five  years 
*     *     *     is  admitted  a  citizen  of  the  United  States."  * 

The  appearance  of  the  identical  name  of  Alia  Lee  in  both 
of  these  documents  raises  the  presumption  that  they  relate 
to  the  same  person  ''  while  the  judicial  administration  of 
the  oath  of  allegiance  recited  in  the  certificate  last  men- 
tioned "amounts  to  a  judgment  of  the  court"  whose  recitals 
are  presumed  to  be  correct."  It  thus  appearing  that  Alia 
Lee  had  "resided  in  the  United  States  at  least  five  years" 
on  September  17,  1868,  we  feel  justified  in  finding  that  the 
child  which  he  and  his  wife  presented  for  baptism  on 
June  2,  1867,  and  whose  birth  is  recited  as  having  occurred 
on  April  20,  was  born  in  the  United  States.  Under  the 
Federal  Constitution  ' 

"All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States." 

It  is  true  that  the  amendment  containing  this  provision 
was  not  declared  to  have  been  ratified  until  July  21,  1868,^ 


*  "Some  courts  *  *  *  admitted  Chinese  to  citizenship"  before 
"the  act  of  May  6,  1882  (22  Stats,  at  Large  61,  Ch.  126)."  Van  Dyne, 
Citizenship,  57,   58. 

The  contrary  decisions  In  re  Ah  Yup,  5  Sawy.,  155,  1  Fed.  Cas., 
223,  No.  104,  and  Re  Gee  Hoh,  71  Fed.,  274,  were  rendered  long  after 
the  issuance  of  said  certificate.  On  the  strength  of  them,  Thayer, 
J.,  after  having  assumed  jurisdiction  of  the  Estate  (U.  S.  Court  for 
China,  No.  71)  of  Ben  Hope  Lee,  who  had  a  "a  duly  authenticated  cer- 
tificate of  naturalization"  dated  Aug.  25,  1881,  from  the  Probate  Court 
of  Franklin  County,  Ohio,  subsequently  (March  10,  1910)  declared  it 
"invalid  and  without  legal  effect"  and  ordered  the  assets  turned  over 
"to   appropriate   Chinese   Officials." 

'Am.  &  Eng.  Encyc.  of  Law  (2nd  ed.)  XV,  920.  Cf.  Spreckels  v. 
Ward,  12  Phil.  418,  7  Off.  Gaz.  146;  U.  S.  v.  Adolf o,  12  PhiL  299, 
7  Off.  Gaz.  41. 

°  Campbell  v.  Gordon,  6  Cranch   (U.  S.)   357,  3  L.  ed.  190. 

'  Amendment  XIV,  sec.   1. 

*  U.  S.  Rev.  Stats.  31,  note. 


702  I  EXTRATERRITORIAL  CASES. 

which  was  after  the  birth  date  above  recited,  but  tl?e  rule 
as  to  citizenship  by  birth  was  exactly  the  same  before  the 
adoption  of  the  amendment ; "  the  latter  merely  confirmed 
and  codified  the  pre-existing  law. 

Of  course  the  naturalization  of  Alia  Lee,  which  was  au- 
thorized by  the  law  of  that  period,  would  have  ipso  facto 
naturalized  his  minor  child  ^"  even  had  the  latter  been 
born  outside  of  the  United  States.  But  we  consider  the 
showing  set  forth  above  sufficient  to  prove  that  Robert  E. 
Lee  was  a  native  citizen  of  the  United  States,  and  that 
this  fact  was  of  more  importance  to  him  than  naturalization 
would  have  been  will  presently  appear. 

The  conclusions  thus  far  reached  are  not  disputed  in  any 
quarter.  They  are  in  fact  recited  in  the  consular  document 
above  quoted.  That  document,  however,  contains  other 
recitals  from  which  it  appears  that,  while  the  decedent 
was  registered  in  said  consulate  "for  a  great  many  years," 
and  his  registration  expired  only  on  March  15,  1915,  "and 
thru  an  oversight  was  not  renewed,"  his  last  application 
for  registration  was  denied.  The  grounds  of  such  denial 
are  set  forth  at  length  in  the  document  above  quoted  and, 
in  order  that  the  position  of  said  consulate  may  be  fairly 
stated  and  fully  understood,  are  reproduced  here.  They 
are  as  follows : 

"In  1880  Robert  E.  Lee  accompanied  his  father  and  sister  to  China, 
where  his  father  continued  to  live  till  his  death,  and  Robert  E.  Lee 
has  resided  in  Shanghai  and  Hankow  continuously  till  the  present 
time. 

"In  reply  to  an  inquiry  regarding  his  reason  in  not  having  re- 
turned to  the  United  States  since  his  departure  in  December,  1879, 
he  states,  'I  have  not  returned  to  the  United  States  since  I  departed 

°  U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649 ;  42  L.  ed.  890 ;  In  re  Look 
Tin  Sing,  21  Fed.  905;  Lynch  v.  Clarke,  1  Sandf.  Ch.  (N.  Y.),  583 
(1844),  where  the  Vice  Chancellor  declares  at  the  close  of  an  ex- 
haustive review  of  the  authorities: 

"I  can  entertain  no  doubt  but  that,  by  the  law  of  the  United  States. 
every  person  born  within  the  dominions  and  allegiance  of  the  United 
States,  whatever  were  the  situation  of  his  parents,  is  a  natural-born 
citizen." 

^"Campbell  v.  Gordon,  6  Cranch  (U.  S.)  357,  3  L.  ed.  190;  North 
Noonday  Milling  Co.  v.  Orient  Mining  Co.,  1  Fed.  522,  527.  See 
other  authorities  cited  in  II  Corpus  Juris,  1128,  note  67. 


IN  RE  lee's  will,  MARCH  30,  1918.  703 

in  1879,  the  reason  is,  since  the  new  law  which  requested  American 
citizens  to  return  home  after  five  years,  I  have  been  an  invalid  and 
am  unable  to  walk.'  He  further  states,  'It  is  my  intention  to  return 
to  the  United  States  to  reside.'  Again  'as  I  am  an  invalid  unable 
to  walk  I  do  not  know  when  I  can  return  home.'  No  definite  time 
for  his  expected  return  is  given.  Again  he  says,  'The  reason  for 
my  prolonged  residence  in  China  is  that  I  can  support  my  self  and 
family  by  managing  my  business  affairs  here  which  I  could  not  do, 
if  I  were  residing  in  America  under  my  present  condition.' 

"The  animo  (us)  revertendi  without  regard  to  his  ability  to  return 
is  a  material  point  in  determining  whether  or  not  he  has  voluntarily 
expatriated  himself.  In  determining  this  question  a  number  of  things 
should  be  taken  into  consideration,  and  tho  he  stated  that  he 
intends  to  return,  his  life,  his  property,  his  family,  his  connections 
(business  and  social)  are  such  as  to  raise  doubt  which  is  almost, 
if  not  quite,  conclusive  that  he  has  no  definite  plans  to  this  end. 

"He  was  married  to  Daisy  Chang,  who  was  born  on  the  'first  day 
of  the  twelfth  moon,  1889.'  Daisy  Chang  is  a  Chinese  woman,  who, 
however,  has  a  fair  English  education,  and  as  fruits  of  this  marriage 
four  children  have  been  born.  The  children,  it  is  admitted,  are  taught 
the  English  language  and  wear  European  clothing,  tho  the  wife 
wears  Chinese  clothing.  Mr.  Lee  in  all  these  years  has  acquired 
property  interests  in  China  estimated  by  himself  at  $10,000  gold, 
and  none  in  the  United  States,  and  he  has  shown  no  desire  to  realize 
on  his  property,  but  rather  to  acquire  more,  and  so  exclusively  are 
his  property  interests  here  that  it  must  be  considered  that  his  res- 
idence is  permanent.  His  wife  has  not  been  in  the  United  States  and 
does  not  associate  with  the  American  people.  All  the  circumstances, 
his  residence  and  his  family  tend  to  disprove  any  intention,  other 
than  floating,  to  return  to  the  United  States  to  reside,  or  that  he  is 
desirous  to  return  to  resume  the  obligations  of  citizenship  there. 
He  states,  'The  relatives  I  have  in  the  United  States  are: 

William  Graham  (uncle). 
Mrs.  Catherin  Graham         (aunt). 

William  Graham  (cousin). 

John  Graham  do. 

Miss  Alice  Graham  do. 

Richard  Graham  do. 

Kitty  Graham  do. 

'When  I  left  home,  the  mentioned  relatives  were  residing  in  Ship- 
man,  Illinois,  U.  S.  A.' 

No  correspondence  with  them. 

It  is  understood  that  under  certain  conditions  presumption  can 
not  extend  against  one  residing  abroad.  For  example,  as  missionary 
the  presumption  of  expatriation  will  be  overcome,  or  if  extending 
American  business  he  will  be  considered  to  have  sound  reasons  for 
remaining  abroad,  or  if  his  health  was  such  that  his  residence  abroad 
was  necessary  for  continuance  of  life,  he  will  still  not  be  required 
to  return  to  America  to  maintain  his  citizenship. 


704  I  EXTRATERRITORIAL  CASES. 

"He  is  not  a  missionary.  He  is  a  business  man,  a  dealer  in 
real  estate  and  acting  as  a  commission  agent,  but  when  re- 
quested to  give  some  instances  where  he  advanced  American  inter- 
ests he  states  that  he  is  a  dealer  in  vermilion  and  yellow  lead.  Thus 
he  advances  American  interests  and  further  states: 

'The  way  I  advance  American  trade  is  by  importing  it  or  by  advising 
China  merchants  and  acquaintances  to  deal  and  use  American  goods; 
sometimes  I  get  samples  for  them  and  give  them  all  the  information 
I  can  concerning  the  American  manufactured  goods  and  products. 
I  have  imported  American  fire  proof  safes,  dry  goods  and  fancy 
goods.  About  half  of  the  Hankow  ricksha  springs  are  American 
manufacture  which  was  imported  by  me.  I  also,  for  my  own  private 
household  use,  send  one  or  two  orders  home  every  year  and  try  to 
get  my  acquaintances  to  do  the  same.  When  the  goods  arrive,  I 
generally  show  them  to  the  merchants  and  friends  and  tell  them  to 
compare  the  articles  with  the  other  foreign  goods  and  they  will 
see  the  superior  quality  for  themselves.  All  our  houses  when  build- 
ing or  repairing,  when  wood  is  used,  we  use  American  wood,  locks, 
hinges,  and  other  things  are  American  manufactured.'  " 

So  far  as  a  fire  proof  safe  is  concerned  and  some  of  the  Hankow 
ricksha  springs  there  is  reason  to  believe  that  his  statement  is  cor- 
rect, but  there  is  considerable  doubt  whether  he  did  it  purely  for  the 
advancement  of  American  interests  or  as  an  owner  desiring  to  obtain 
the  best  articles.  The  same  is  true  in  regard  to  small  articles  used 
in  his  buildings. 

"His  knowledge  of  American  ai-ticles  is  not  sufficient  to  qualify 
him  to  be  of  any  assistance  in  the  extension  of  American  trade  and 
his  plans  are  purely  for  the  extension  of  his  own  business  regard- 
less of  the  source  of  supply  and  regardless  of  the  origin  of  the 
goods  used. 

"In  reply  to  an  inquiry  as  to  correspondence  with  America  during 
the  last  three  years  he  says: 

'Within  the  last  three  years  I  have  had  business  correspondence 
with  Montgomery  Ward  and  Company  in  Chicago,  Illinois,  and  with 
Reverend  Reed,  Minister  of  the  Church  of  Grace,  now  called  the  Holy 
Cross  House  in  St.  Louis,  Missouri.'  " 

It  is  known  to  this  Consulate  General  that  correspondence  with 
Reverend  Reed  was  to  obtain  copy  of  his  or  his  brother's  birth  or 
baptismal  certificate;  with  Montgomery  Ward  and  Company  was 
for  household  articles  illustrated  in  this  fii-m's  catalogue  on  file 
in  this  office. 

"In  regard  to  his  health,  and  it  is  this  which,  if  estopped,  pre- 
vented the  presumption  of  expatriation :  There  is  no  question  but 
that  he  is  physically  unable  to  return  to  the  United  States,  as  he 
is,  excepting  his  mind,  a  total  paralytic  unable  to  move,  and  has 
been  for  fifteen  years,  and  on  this  account  he  has  been  registered, 
but  it  is  respectfully  submitted  to  the  Department  that  one  who 
is  seriously  ill  invariably  realizes  that  he  should  return  to  the 
country  and  locality  of  his  nativity  where  his  closest  relatives  abide, 


IN  RE  LEE'S  WILL,  MARCH  3  0,  1918.  705 

and  in  no  other  way  can  health  be  restored  is  his  imagination.  He 
was  a  healthful  lad  of  twelve  years  when  he  came  to  China,  and 
what  ailments  he  had  were  contracted  in  this  country.  He  has  never 
attempted  to  prove  that  the  American  climate  had  a  detrimental 
effect  on  his  health.  His  registration  has  been  provisional  only 
pending  instructions,  because  it  is  understood  that  for  ill  health  to 
overcome  the  presumption  of  expatriation  it  must  be  of  such  a 
character  that  a  return  would  be  a  detriment  and  it  is  not  believed 
that  an  incurable  illness  which  prevents  travel  shall  be  the  cloak, 
to  cover  citizenship,  unless  it  be  accompanied  by  some  well  estab- 
lished desire  to  resume  residence  in  America." 

The  Department  of  State,  to  which  the  question  was 
finally  referred,  declined  to  approve  decedent's  registration 
on  the  ground  of  a  discretionary  right  "to  refuse  its  pro- 
tection to  one  who  has  left  the  United  States  for  permanent 
residence  abroad"  but  it  was  also  stated,  thru  Director  Carr 
of  the  Consular  Service,  that 

"in  the  absence  of  any  statute  prescribing  that  by  prolonged  res- 
idence abroad  a  native  citizen  of  the  United  States  shall  be  pre- 
sumed to  have  expatriated  himself,  the  Department  refrains  from 
expressing  an  opinion  on  that  point." 

The  question  of  decedent's  nationality  being  thus  ex- 
pressly left  open  and  a  determination  thereof  being  neces- 
sary before  the  exercise  of  jurisdiction  to  pass  upon  the 
instrument  here  offered  for  probate,  the  situation  appears 
to  call  for  an  investigation  and  decision  of  the  question 
presented  by  the  recitals  of  the  consular  document  above 
quoted,  viz.,  whether  continued  residence  abroad  under  the 
circumstances  there  detailed  ipso  facto  forfeits  the  status 
of  a  native  citizen.  We  are,  of  course,  not  considering  the 
question  of  consular  registration  which  is  a  ministerial  act 
under  direction  of  a  coordinate  branch  of  the  government. 

II. 

At  Common  Law  there  seems  to  have  been  no  method 
by  which  a  subject  or  citizen  could  lose  that  status.  As 
was  declared  in  an  early  English  case  '^ 

"It  is  not  in  the  power  of  any  private  subject  to  shake  off  his 
allegiance  and  transfer  it  to  a  foreign  prince." 

"  The  Case  of  Aeneas  MacDonald,  Foster's  Crown  Law,  59,  Scott's 
Cases  on  International  Law,  370    (1747). 

14008  O.  W. 45  I  j 


706  I  EXTRATERRITORIAL  CASES. 

Nor  was  the  rule  peculiar  to  English  law.  The  doctrine 
"once  a  citizen  always  a  citizen"  was  as  much  a  part  of 
the  Common  Law  of  America  ^-  as  of  England.  And  while 
the  political  branch  of  the  Government  recognized  the  right 
of  expatriation  on  the  part  of  subjects  of  other  powers  and 
accepted  them  as  American  citizens,  the  courts  adhered  to 
the  doctrine  that  as  to  our  own  citizens  "allegiance,  with- 
out mutual  consent,  is  indissoluble."  ^^ 

This  legal  situation  continued  for  more  than  three- 
quarters  of  a  century  after  the  foundation  of  the  Federal 
Government.  At  last,  in  1868,  Congress  passed  an  act 
reciting  in  the  preamble  that  "the  right  of  expatriation  is 
a  natural  and  inherent  right  of  all  people"  and  providing 

"That  any  declaration,  instruction,  opinion,  order,  or  decision  of 
any  officers  of  this  government  which  denies,  restricts,  impairs,  or 
questions  the  right  of  expatriation,  is  hereby  declared  inconsistent 
with  the  fundamental  principles  of  this  government." " 

This  was  followed  two  years  later  by  a  convention  be- 
tween the  United  States  and  Great  Britain  providing  for 
mutual  recognition  by  each  contracting  nation  of  the  right 
of  expatriation  on  the  part  of  certain  of  its  own  and  the 
other's  nationals.^" 

But  this  legislation  was  far  from  sufficient  for  it  failed 
to  prescribe  the  mode  of  expatriation.  As  was  observed 
by  President  Grant  in  a  message  to  Congress  some  five 
years  after  the  passage  of  the  statute  last  cited : 

"The  United  States,  who  led  the  way  in  the  overthrow  of  the 
feudal  doctrine  of  perpetual  allegiance,  are  among  the  last  to  indicate 
how  their  own  citizens  may  elect  another  nationality.  *  *  *  j 
invite  Congress  now  to  mark  out  and  define  when  and  how  expatria- 
tion can  be  accomplished."  ^' 

"The  Williams  Case,  Wharton's  State  Trials,  652,  Scott's  Cases 
on  International  Law,  372  (1797)  ;  Shanks  v.  Dupont,  3  Pet.  (U.  S.), 
242,  7  L.  ed.,  666   (1830)  ;  Kent's  Commentaries,  11,  60. 

"Wharton's  State  Trials,  658. 

"  Act  of  Congress  of  July  27,  1868,  15  U.  S.  Stats,  at  Large,  223, 
Ch.  249,  sec.  1. 

''Treaties  in  Force    (1904),  336. 

"  U.  S.  Foreign  Relations  (1873),  I,  vii;  Messages  and  Papers  of 
the  Presidents   (Richardson),  VII,  239  et  seq. 


IN  RE  lee's  will,  MARCH  3  0,  1918.  707 

But  Congress  was  slow  to  act  and  meanwhile  various 
theories  and  practices  arose  in  the  political  branch  of  the 
Government  to  meet  exigencies.  Thus  the  Department  of 
State  had  occasion  to  announce  not  infrequently  that  the 
Government  would  not  extend  its  protection  to  American 
citizens  who  should  acquire  a  permanent  residence  in 
a  foreign  country.^'  In  most  of  these  cases  the  subject 
was  a  naturalized  citizen  and  in  some  of  them  his  conduct 
had  been  quite  inconsistent  with  the  retention  of  American 
citizenship.  But  it  was  expressly  declared  by  one  head 
of  the  Department,  a  distinguished  American  lawyer,  that 

"Continued  residence  of  a  native  Amei'ican  abroad  is  not  expatria- 
tion, unless  he  performs  acts  inconsistent  with  his  American  nation- 
ality and  consistent  only  with  the  formal  acquirement  of  another 
nationality,  and  the  same  rule  holds  equally  good  in  the  case  of  a 
naturalized  citizen  of  the  United  States  who  may  reside  abroad  other- 
where than  in  the  country  of  his  original  allegiance."  " 

The  arbitrators  of  certain  Spanish  and  American  claims  ^® 
are  quoted  as  having  decided  that — 

"A  citizen  of  the  United  States  who,  being  of  lawful  age,  leaves 
the  United  States  and  establishes  himself  in  a  foreign  country, 
without  any  definite  intention  to  return  to  the  United  States,  is  to 
be  considered  as  having  expatriated  himself."  ^° 

But  after  a  somewhat  extensive  search  we  have  found 
no  decision  by  any  regularly  established  court  announcing 
that  doctrine.  There  are  indeed  certain  Philippine  cases  ^^ 
adopting  expressions  of  the  State  Department  similar  to 
those  above  noticed,  but  these  are  mere  dicta  since  thej^ 

"Wharton's  Int.  Law  Digest,  II,  447  et  seq.;  U.  S.  Foreign  Rela- 
tions   (1888),  I,  510  et  seq. 

''Secretary  Evarts  in  U.  S.  Foreign  Relations    (1880),   960. 

'"  17  U.  S.  Stats,  at  Large,  39. 

^''  Moore's   International   Arbitrations,   III,   2565. 

''  Lorenzo  v.  Collector  of  Customs,  15  Phil.,  559;  Munoz  v.  Collector 
of  Customs,  20  Phil.,  494;  Lim  Teco  v.  Collector  of  Customs,  24  Phil., 
84;  Roa  v.  Collector  of  Customs,  23  Phil.,  315.  The  opinion  in  the 
case  last  cited  (per  Trent,  J.)  declares  that  "there  is  no  mode  of 
renunciation  of  citizenship  prescribed  by  law  in  the  United  States," 
altho  the  Act  of  1907  prescribing  such  mode  had  then  been  in  force 
for  some  five  years. 


708  I  EXTRATERRITORIAL  CASES. 

did  not  and  could  not  construe  the  American  naturalization 
laws  which  are  not  in  force  in  the  Philippines. 

From  the  first  the  trend  of  judicial  and  legal  thought 
in  the  United  States  appears  to  have  held  consistently  to 
the  view  that  something  more  than  mere  residence  abroad 
is  required  in  order  to  effect  a  forfeiture  of  citizenship. 
Thus  a  Virginia  decision,  early  in  the  century,  declares: 

"A  temporary  absence  will  not  divest  a  man  of  the  character  of 
citizen  or  subject  of  the  state  or  nation  to  which  he  may  belong. 
There  must  be  a  removal  with  an  intention  to  lay  aside  that  char- 
acter, and  he  must  actually  join  himself  to  some  other  community." '' 

Four  years  later  Mr.  Justice  Washington,  presiding  in 
the  Federal  Circuit  Court,  made  the  following  observations 
in  the  case  of  an  American  who  had  then  been  residing 
with  his  family  in  England  for  eleven  years : 

"It  is  true,  that  a  man  may  obtain  a  foreign  domicil,  which  will 
impress  upon  him  a  national  character  for  commercial  purposes,  and 
may  expose  his  property,  found  upon  the  ocean,  to  all  the  conse- 
quences of  his  new  character;  in  like  manner,  as  if  he  were,  in  fact, 
a  subject  of  the  government  under  which  he  resides.  But  he  does 
not,  on  this  account,  lose  his  original  character,  or  cease  to  be  a 
subject  or  citizen  of  the  country  where  he  was  born,  and  to  which  his 
perpetual  allegiance  is  due."  ^ 

The  Department  of  Justice  adhered  to  this  view.  At- 
torney-General Black  announced  that: 

"Expatriation  includes  not  only  emigration  out  of  one's  native 
country,  but  naturalization  in  the  country  adopted  as  a  future  res- 
idence.'* 

So  Attorney-General  Williams,  writing  in  1873,  five  years 
after  the  passage  of  the  Expatriation  Act,  said : 

"When  a  citizen  of  the  United  States  goes  abroad  without  intend- 
ing to  return,  he  takes  one  indispensable  step  towards  expatriation; 
but  to  effect  a  complete  annihilation  of  all  duties  and  obligations 
between  the   Government  of  his   native  country  and  himself,  which 


'^  Murray  v.  M'Carty,  2  Munf.,  394  (1811),  citing  Puff.,  b.  8,  c.  11, 
s.  3,  p.  869;  Hein.,  b.  2,  c.  10,  s.  230. 

"U.  S.  v.  Gillies,  Pet.  (CC),  159,  3  Wheeler  Grim.  Gas.,  308,  25 
Fed.  Gas.,  1321. 

"  Opinions,  Attorney-General,  IX,  359. 


IN  RE  LEE'S  WILL,  MARCH  3  0,  1918.  709 

expatriation  implies,  it  is  necessary  that  he  should  become  a  resident 
in  some  foreign  country  with  an  intent  to  remain  there,  superadded 
to  which  there  tnust  be  acts  in  the  direction  of  becoming  a  citizen  or 
subject  of  such  foreign  country,  amounting  at  least  to  a,  renuncia- 
tion of  United  States  citizenship."  ^ 

III. 

Thus  the  law  stood  until  1907  v;hen  Congress  for  the 
first  time  provided  a  statutory  mode  of  expatriation.-* 
Section  2  of  that  statute  reads  in  part  as  follows : 

"That  any  American  citizen  shall  be  deemed  to  have  expatriated 
himself  when  he  has  been  naturalized  in  any  foreign  state  in  con- 
formity with  its  laws,  or  when  he  has  taken  an  oath  of  allegiance 
to  any  foreign  state." 

The  balance  of  the  section  relates  entirely  to  naturalized 
citizens  with  whom  we  are  not  here  concerned.  This  act 
is,  as  we  have  seen,  in  derogation  of  the  Common  Law 
which  recognized  no  right  or  mode  of  expatriation.  In  a 
previous  decision  -■  of  this  court  we  had  occasion  to  in- 
terpret another  of  its  provisions  ^^  and  to  hold  that  it 
must  be  construed  strictly  in  aid  of  a  civil  right — the 
retention  of  citizenship — and  it  seemed  best  to  harmonize 
with  the  approved  canons  of  interpretation  ~^  to  construe 
the  statutory  mode  of  retention  as  cumulative  only.  Here 
we  are  concerned  with  the  opposite  process — the  forfeiture 
of  citizenship — and  the  same  canon  of  strict  construction  in 
aid  of  a  right  would  seem  to  require  that  the  modes  of 
expatriation  (forfeiture)  prescribed  in  sec.  1, — viz.,  foreign 
naturalization  and  oath  of  allegiance  to  a  foreign  state — 
be  treated  as  exclusive.  The  maxim  expressio  unius  est 
exclusio  alterius  is,  according  to  Mr.  Broom's  classical 
work,^'  "never  more  applicable  than  when  applied  to  the 
interpretation  of  a  statute."     Thus  where  an  act  specifies 

='Id.,  XIV,   297,  298. 

="  Act  of  March  2,  1907,  Sess.  II,  34  U.  S.  Stats,  at  Large,  Ch.  2534, 
p.  1228. 

■'  In  re  McGhee's  Estate,  ante,  p.  418. 

"Sec.   4. 

"  Cyc,  XXXVI,  1179. 

"Broom's  Legal  Maxims,  664.* 


710  J   EXTRATERRITORIAL   CASES. 

one  or  more  modes  of  accomplishment  other  modes  are  by 
implication  excluded. '^^ 

Again,  as  pointed  out  in  the  decision  of  this  court  last 
cited,  the  situation  of  American  citizens  in  China,  and  other 
countries  where  our  Government  exercises  extraterritorial 
jurisdiction,  is  wholly  different  from  that  where  such  juris- 
diction does  not  obtain.  When  an  American  citizen  takes 
up  his  abode  in  England,  e.  g.,  he  subjects  himself  to  its 
laws  and  administrative  regulations  and  to  the  jurisdiction 
of  its  courts.  To  a  great  extent  his  own  government  ceases 
to  exercise  authority  over  him.  But  an  American  citizen 
in  China,  whether  residing  temporarily  or  permanently,  re- 
mains as  much  under  the  jurisdiction  of  his  government, 
its  laws  and  its  institutions  as  if  he  were  residing  at  home. 
Moreover,  it  is  now  well  settled  in  our  law  that  such  a 
citizen  may  even  acquire  an  American  domicil  in  China. "- 

It  is  one  of  the  elements  of  citizenship  as  prescribed 
in  the  constitutional  definition  '^  that  one  is  "subject 
to  the  jurisdiction  of  the  United  States."  ''^  Under  the 
Act  of  1907  that  jurisdiction  would  seem  to  continue 
until  the  native  citizen  has  become  naturalized  in  China. 
And  it  seems  that  such  a  process  was  not  possible  during 
decedent's  lifetime.  Under  the  so-called  "Manchu  Code" 
(Ta  Ching  Lti  Li)   capital  punishment  was  imposed  upon 

"^  England.  "Affirmatives  in  statutes  that  introduce  a  new  rule 
imply  a  negative  of  all  that  is  not  within  the  purview.  Hob.  298. 
And  when  a  statute  limits  a  thing  to  be  done  in  a  particular  form, 
it  includes  in  itself  a  negative,  viz.,  that  it  shall  not  be  done  other- 
wise. Plowd.  206  b.  Affirmative  words  in  a  statute  do  sometimes 
imply  a  negative  of  what  is  not  affirmed,  as  strongly  as  if  ex- 
pressed. Nott,  J.,  in  Cohen  v.  Hoff,  2  Tredway,  661."  (Kent's  Com- 
mentaries, I,  467,  note.) 

Iowa.     District  Township  v.  City  of  Dubuque,  7  Iowa,  262. 

New  Mexico.     In  re  Attorney-General,  2  N.  M.,  49,  56. 

Oregon.     Scott  v.  Ford,  52  Or.,  288,  97  Pacific,  99. 

Tennessee.     Rich  v.  Rayle,  2  Humph.,  404,  407. 

Texas.     Bryan  v.   Sundberg,  5  Tex.,  418,  423. 

'"In  re  Robert's  Will  (U.  S.  Court  for  China,  Estate  No.  10)  ;  In  re 
Allen's  Will,  ante,  p.  92;  Mather  v.  Cunningham,  ante,  p.  136. 

"'Federal  Constitution,  Amendment  X'v,  sec.  1. 

'*/n  re  Look  Tin  Sing,  21  Fed.,  905,  where  Field,  J.,  construes 
this  phrase. 


IN  RE  lee's  will,  MARCH  30,  1918.  711 

"all  persons  renouncing  their  country  and  allegiance,  or 
devising  the  means  thereof."  '■"■'  And  while  the  Treaty  of 
1868  recognized  on  the  part  of  both  contracting  parties 
"the  inherent  and  inalienable  right  of  man  to  change  his 
allegiance,"  •■''  and  expressly  authorized  residence  in  their 
respective  territories,  it  also  provided  ^^  that  "nothing 
herein  contained  shall  be  held  to  confer  naturalizations 
upon  citizens  of  the  United  States  in  China,  nor  upon  the 
subjects  of  China  in  the  United  States." 

From  this  it  would  appear  that  an  American  citizen  is 
precluded  from  changing  his  allegiance  by  mere  residence 
in  China. 

Moreover,  it  appears  that  until  1909  '*  no  provision  was 
promulgated  by  which  a  foreigner  might  acquire  Chinese 
nationality;  that  the  machinery  for  applying  that  law  has 
but  lately  been  provided  if  at  all;  and  that  no  case  of 
naturalization  thereunder  has  yet  occurred.  There  is  no 
claim  that  the  decedent  ever  acquired,  or  sought  to  acquire, 
such  naturalization.  On  the  contrary  it  appears  that  his 
claim  of  American  citizenship  was  constant  and  steadfast 
and  the  sole  ground  for  impugning  it  seems  to  be  that  he 
married  and  settled  in  China  and  remained  here  during 
most  of  his  life  without  a  definite  intention  of  returning 
to  his  native  country.  The  impossibility  of  his  becoming 
a  Chinese  national  has  merely  this  bearing:  that  if  his 
American  citizenship  was  forfeited  he  was,  and  had  to 
remain,  "a  man  without  a  country,"  his  estate  cannot  be  ad- 
ministered in  any  court,  and  his  family  is  left  without 
legal  status,  recognition,  protection  or  even  means  of  sup- 
port. A  conclusion  which  would  entail  such  a  chain  of 
catastrophes  ought  never  to  be  announced  unless  the  law 


"'  Chinese   Code,   Staunton's   translation,    sec.   CCLV. 

*' Treaties  between  China  and  Foreign  States  (Shanghai  1908)  I, 
527,  Art.  V. 

='Id.,  Art.  VI. 

®'  A  summary  of  the  Chinese  "Nationality  Act"  of  that  year  ap- 
pears in  the  Bulletin  of  the  Comparative  Law  Bureau,  III,  98-100 
(1910)  by  Dr.  Chung  Wang  Hui  of  the  Chinese  Law  Codification 
Commission  who  now  writes  that  the  act  has  been  twice  amended. 
See  Law  of  18th  day  of  the  11th  moon,  of  the  first  year  of  the 
Republic. 


712  I  EXTRATERRITORIAL  CASES. 

imperatively  requires  it.  We  do  not  find  that  the  American 
law  does  require  it.  Our  researches  have  led  to  the  op- 
posite conclusion. 

We  accordingly  find  from  the  evidence — 

1.  That  the  deceased,  Robert  Edmund  Lee,  was  born, 
lived  and  died  an  American  citizen; 

2.  That  he  left  property,  of  the  value  of  more  than  Five 
Hundred  Dollars,  United  States  currency,  within  the  juris- 
diction of  this  court  where  he  died  on  July  3,  1917; 

3.  That  the  instrument  offered  in  evidence  as  Exhibit 
"A"  is  the  last  will  and  testament  of  the  said  decedent; 
that  it  was  voluntarily  and  validly  executed  by  him  at  a 
time  when  he  was  of  sound  mind  and  disposing  memory; 
and  that  the  same  was  intended  to  be  his  last  will  and 
testament ; 

4.  That  said  instrument  names  as  executrix  Daisy  Lee, 
the  wife  of  said  decedent,  and  that  no  reason  appears  why 
Letters  Testamentary  should  not  issue  to  her. 

It  is  accordingly  considered  and  decreed  that  said  in- 
strument be  and  it  hereby  is  admitted  to  probate  as  the 
last  will  and  testament  of  said  decedent  and  that  since 
the  said  instrument  authorizes  her  to  serve  without  bond, 
such  Letters  issue  to  the  said  Daisy  Lee  as  Executrix  upon 
her  taking  and  subscribing  the  oath  according  to  law.''*' 

'°  Writing  to  the  author  of  the  foregoing  opinion,  Dr.  John  Bassett 
Moore,  formerly  Counselor  of  the  State  Department  and  the  fore- 
most teacher  of  International  Law  in  America,  said: 

"Not  only  do  I  consider  your  conclusions  to  be  correct,  but  I  wel- 
come them  as  an  authoritative  contribution  towards  the  establish- 
ment of  a  distinction  which  is  too  little  understood. 

In  my  History  and  Digest  of  International  Arbitrations  I  devoted 
an  entire  chapter  (Vol.  Ill,  Ch.  56)  to  the  Renunciation  or  Forfeit- 
ure of  the  Right  to  National  Protection.  I  used  this  phraseology 
for  the  purpose  of  opening  the  way  to  correction  of  the  supposition, 
which  has  so  extensively  prevailed  in  judicial  and  diplomatic  utter- 
ances, that  the  refusal  to  extend  protection  to  a  citizen  could  be 
justified  only  on  the  ground  that  he  was  "expatriated,"  in  the  sense 
of  having  lost  his  citizenship.  I  make  the  same  distinction  in  my 
Digest  of  International  Law,  Vol.  Ill,  pp.  757-790.  It  seemed  to 
me  that  one  of  the  few  improvements  made  by  the  Act  of  1907  in 
pre-existing  law  was  the  fact  that  it  recognized,  perhaps  uninten- 
tionally, that  distinction. 

So  far  as  concerns  the  courts,  the  confusion  in  which  the  subject 
has  been  so  generally  enshrouded  is  largely  due  to  the  unprecise  and 
more  or  less  promiscuous  use  of  the  terms  citizenship,  domicil   and 


IN  RE  sweet's  will,  APR.  3,  1918.  713 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Winfield  S.  Sweet's  Will. 

[Cause  No.  646;  filed  April  3,  1918.] 

SYLLABUS. 

(By  the  Court.) 

I.WILLS:  Form.  No  particular  form  of  words  is  necessary  to  con- 
stitute a  will  provided  an  intention  is  disclosed  to  dispose  of 
property  effective  after  death. 

2.  Id.  :   Informal  instrument  offered  for  probate  found  sufficient  and 

admitted. 

3.  Id.  :  Dangers  of  informality  in  such  instruments  emphasized. 

4.  Id.  :   Interpretation.     The  testator's  intent  is  the  controlling  con- 

sideration in  construing  wills. 

expatriation.  Citizenship  has  been  used  in  the  sense  of  domicil, 
domicil  has  been  used  in  the  sense  of  citizenship,  and  expatriation 
has  been  used  indiscriminately  to  denote  changes  of  citizenship  and 
changes  of  domicil. 

So  far  as  concerns  the  Executive  Department,  there  has  been  a 
special  confusion  chiefly  due  to  a  misinterpretation  of  the  statutory 
requirement,  based  on  the  Expatriation  Act  of  1868,  that  no  dis- 
tinction shall  be  made  in  the  treatment  of  native  citizens  and  of 
naturalized  citizens  abroad.  On  the  assumption  that  this  meant  that 
no  account  was  to  be  taken  of  the  circumstance  that  one  was  a  native 
and  the  other  a  naturalized  citizen,  our  Secretaries  of  State  have  in 
fact  often  subjected  the  native  citizens  to  a  discrimination  for  which 
there  was  not  the  slightest  legal  justification.  Our  naturalization 
treaties,  with  perhaps  a  single  exception,  have  incorporated  the  prin- 
ciple that  a  naturalized  citizen  permanently  returning  to  the  country 
of  his  origin  is  to  be  considered  as  having  renounced  his  naturaliza- 
tion. This  rule  has  a  justification  in  law  as  well  as  in  common 
sense.  But  to  say  that  a  native  citizen  who  goes  to  reside  even 
permanently  in  a  country  that  never  had  a  claim  to  his  allegiance, 
should  be  treated  as  if  it  were  the  country  of  his  original  allegiance, 
is  justified  neither  in  law  nor  in  common  sense.  Whenever  I  have 
had  an  opportunity  I  have  endeavored  to  impress  these  considerations 
upon  those  in  authority.  Your  compact  and  well-reasoned  judicial 
opinion  will,  I  believe,  be  of  great  value  in  clarifying  the  thought 
of  those  who  have  to  deal  with  a  subject  which  has  been  so  much 
misapprehended." 

Dr.  Tyau,  author  of  several  works  on  International  Law,  reviewing 
the  principal  case  in  the  Peking  Leader  of  April  14,  1918,  observes, 
inter  alia: 

"In  itself  the  decision  contains  nothing  new,  it  being  the  almost 
universal  rule  of  law  that  a  foreigner  entering  a  country  does  not 
lose  his  nationality  until  and  unless  he  takes  out  proper  naturaliza- 
tion papers  or  does  some  acts  which  clearly  show  his  intention  to 
divest  himself  of  that  nationality  no  matter  how  long  he  resides 
therein.  Yet  the  case  is  interesting  because  it  affords  a  parallel  to 
that  of  the  great  numbers  of  Chinese  who  reside  in  foreign  countries 
but  do  not  become  naturalized  despite  their  length  of  residence." 


714  I  EXTRATERRITORIAL  CASES. 

LOBINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  petition  of 
Mrs.  Josie  M.  Sweet  for  the  admission  to  probate  of  an 
instrument  offered  as  the  Last  Will  and  Testament  of  her 
late  husband,  Winfield  S.  Sweet.  The  only  legal  question 
which  arises  in  the  proceeding  pertains  to  the  sufficiency 
as  to  form  of  the  said  instrument  which  reads  as  follows: 

"I  herewith  give  to  Mrs.  Sweet  all  property  personal  and  deeds 
and  money  in  case  my  life  passes  away.  I  appoint  my  wife  Josie 
M.  Sweet  to  be  my  executor. 

"(Sgd.)     W.  S.  Sweet. 
"Witnesses : 

Elizabeth   E.  Coltert. 
E.  L.  Mattox. 
Emma   K.   Mattox. 
"Dated  Mohkan  San,  June  11,  1917." 

The  petitioner  testifies  that  she  was  present  at  the  time 
of  its  execution  and  the  instrument  is  in  the  handwriting 
of  the  deceased.  It  contains,  as  will  be  noted,  the  names 
of  the  requisite  number  of  witnesses  who,  the  petitioner 
testifies,  were  also  present  at  the  execution.  In  phrase- 
ology the  instrument  is  extremely  informal  but  not  more 
so  than  numerous  others  which  have  been  admitted  to 
probate  by  the  courts.  The  following  are  some  of  many 
such  examples  where  informal  documents  were  upheld  as 
valid  wills: 

"It  is  my  wish  and  desire  that  my  good  friend  and  relative  Dr. 
Joseph  B.  Outlaw  have  all  my  property  of  every  description.  Dec. 
20,  1848.     David  Outlaw.'" 

"If  I  should  die  or  get  killed  in  Texas  the  place  must  belong  to 
you."' 

"And  Ann,  after  my  death  you  are  to  have  forty  thousand  dollars; 
this  you  are  to  have,  will  or  no  will.  Take  care  of  this  until  my 
death."" 

'  Outlaw  v.  Hurdle,  46  N.  C.  150. 

'  Alston  v.  Davis,  118  N.  C.  202,  24  S.  E.  15  (from  letter  written 
by  deceased  to  his  sister) . 

"  Byers  v.  Hoppe,  61  Md.  207,  48  Am.  Rep.  89.  "In  our  opinion," 
says  the  court,  "these  concluding  sentences  *  *  *  evince  just  as 
effectually,  in  legal  contemplation,  that  the  writer  wrote  them  anhno 
testandi,  as  if  he  had  said  in  terms:  'I  hereby  will  and  bequeath  to 
Eliza  Ann  Byers  forty  thousand  dollars,  to  be  paid  to  her  at  my 
death  out  of  my  personal  estate.'  " 


IN  RE  SWEET'S  WILL,  APR.  3,  1918.  715 

"Mayfield  Grange,  Tuesday,  June  23,  1874.  Dear  Old  Nance:  I 
wish  to  give  you  my  watch,  two  shawls  and  also  five  thousand  dollars. 
Your  old  friend,   E.  A.   Gordon."  * 

"1  have  requested  my  executors  to  give  a  clear  deed  for  the  prop- 
erty, after  my  death,  to   Maggie,  his  wife,  and   Charley."  ^ 

"I  want  to  make  you  and  Lulu  a  deed  to  that  house  and  lot  and 
I  don't  want  you  and  her  to  ever  have  any  trouble  over  it." " 

"If  I  am  not  living  at  the  time  this  note  is  paid,  I  order  the 
contents  to  be  paid  to  Arad  Hunt  2nd.     Witness:   Arad  Hunt.'" 

"New  Orleans,  September  15,  1859.  Mrs.  Sophia  Loper  is  my 
heiress.  G.  Ehrenberg."  "New  Orleans,  March  16,  1861.  The  leg- 
atee's  name   is   correctly   spelt   Loeper.     G.    Ehrenberg."  ■ 

"A  few  little  things  I  would  love  to  have  done:  Always 
keep  Vicie  and  Pet,  if  possible.  Mama  to  have  everything  she 
wants,  v^rith  a  few  exceptions  of  remembrances.  Please  let  sister 
have  my  house  rent  as  long  as  she  may  live;  then  may 
my  little  namesake  have  it.  ;=  *  *  Take  good  care  of  Vicie  'some- 
body' as  long  as   she  lives.     Saturday.     Harriet."  ' 

"November  7th,  1890.  Nuncupative  by  word  of  mouth  my  will 
was  made  (sic)  on  the  above  date,  everything  left  to  my  dear  wife, 
Mary  W.  Fouche,  all  my  real  and  personal  estate  and  every  I  own 
at  the  time  of  my  death.     William  W.  Fouche."  '" 

"What  I  want  is  that  you  should  change  my  will  so  that  she  (his 
wife)   will  be  entitled  to  all  that  belongs  to  her  as  my  wife."  " 

In  this  instance  the  testamentary  intent  seems  clear. 
The  word  "give,"  which  is  absent  from  most  of  the  in- 
struments above  referred  to,  is  used  and  it  is  evident  that 

*  Clarke  v.  Ransom,  50  Cal.,  595. 

'  Webster  v.  Lowe,  107  Ky.,  293,  53  S.  W.,  1030. 

"  Milam  v.  Stanley  (Ky.),  Ill  S.  W.,  296,  17  L.  R.  A.  (N.  S.),  1126. 
(From  letter  written  by  deceased  to  his  daughters.) 

'Hunt  V.  Hunt,  4  N.  H.,  434,  17  Am.  Dec,  438.  (Indorsement  on 
promissory  note.)  See  also  Jackson  v.  Jackson,  6  Dana  (Ky.),  257, 
where  a  promissory  note  payable  after  the  maker's  death  was  held 
to  be  a  valid  will. 

*  Succession  of  Ehrenberg,  21  La.  Ann.,  280,  99  Am.  Dec,  729. 
(The  instrument  was  indorsed  as  follows:  "Ehrenberg's  will,  to  be 
opened  by  S.  B.  Patrick,  who  will  see  it  executed.  A  copy  of  this 
will  is  left  in  the  hands  of  the  heiress.") 

'■'  Appeal  of  Knox,  131  Pa.,  220,  18  Atl.,  1021,  6  L.  R.  A.,  353,  17 
Am.  St.  Rep.,  798,  the  court  noting  that  "It  does  not  on  its  face 
purport  to  be  a  will,  and  in  form  is  not  a  command,  but  a  request, 
addressed  to  no  special  person  by  name." 

"/n  re  Fouche's  Estate,  147  Pa.,  395,  23  Atl.,  547. 

"  Barney  v.  Hays,  11  Mont.,  99,  571,  27  Pac,  384,  29  Pac,  282,  28 
Am.  St.  Rep.,  495.     (Letter  written  by  deceased  to  his  lawyer.) 


716  I   EXTRATERRITORIAL   CASES. 

the  gift  is  not  to  take  effect  except  "in  case  my  life  passes 
away."  To  quote  the  language  used  in  a  leading  case^ 
therefore,  "it  has  the  essential  element  of  being  a  disposi- 
tion of  property  to  take  effect  after  death."  '-  An  executor 
is  also  named  and  this  designation  is  not  of  course  in- 
validated because  the  decedent's  wife  should  have  been 
referred  to  as  the  "executrix."  The  testator's  intent  is 
the  controlling  consideration  and  mere  informality  will  not 
be  allowed  to  defeat  it." 

But  while  we  find  no  difficulty,  in  the  light  of  the 
authorities,  in  upholding  this  instrument  we  are  far  from 
commending  it  as  a  model  and  we  feel  that  the  occasion 
justifies,  here  as  in  the  case  last  cited,  calling  attention 
to  the  necessity  of  greater  care  and  a  fuller  realization 
on  the  part  of  our  nationals  of  the  importance  of  draft- 
ing such  instruments.  The  folly  of  postponing  such  a 
duty  until  one's  last  hours  has  been  repeatedly  demon- 
strated in  the  experience  of  this  as  well  as  of  other  courts. 
The  deceased  was  a  missionary  and  we  can  only  wish  that 
more  of  the  organizations  of  those  worthy  laborers  for 
the  advancement  of  China  would  follow  the  example  of 
the  Treasurer  of  the  American  Church  Mission  in  preparing 
and  sending  to  all  those  connected  with  said  mission  in 
China  an  approved  form  of  will  and  requesting  its  early 
execution. 

We  find  from  the  evidence: 

1.  That  Winfield  S.  Sweet,  late  a  citizen  of  the  United 
States,  domiciled  at  Hangchow,  China,  died  at  Rochester, 
Minnesota,  on  September  28,  1917; 

2.  That  he  left  property  within  the  jurisdiction  of  the 
Court  of  the  value  of  more  than  Five  Hundred  Dollars, 
United  States  currency; 

3.  That  the  instrument  offered  in  evidence  as  Exhibit 
"A"  was  voluntarily  and  validly  executed  by  him  at  a 
time  when  he  was  of  sound  mind  and  disposing  memory; 
that  the  same  was  intended  by  him  to  be  his  last  will  and 
testament  and  that  tho  the  same  is  informal  the  said  in- 


''  Appeal  of  Knox,  131  Pa.,  220,  18  Atl.,  1021,  6  L.  R.  A.,  353,  17 
Am.  St.  Rep.,  798,  106  Pac,  359. 

"7rj  re  Bonnell's  Will,  ante,  p.  647. 


IN  RE  CORRIGAN'S   ESTATE,   APR.    18,    1918.  717 

tention  should  be  carried  out  and  that  the  said  instrument 
is  therefore  entitled  to  probate  as  such  last  will  and  tes- 
tament ; 

4.  That  by  said  instrument  the  deceased  intended  to 
name  his  wife,  Josie  M.  Sweet,  as  executrix  thereof  and 
that  no  reason  appears  why  Letters  Testamentary  should 
not  issue  to  her. 

It  is  accordingly  considered  that  said  instrument  be  and 
it  hereby  is  admitted  to  probate  as  the  Last  Will  and  Tes- 
tament of  said  decedent,  and  that  Letters  Testamentary 
issue  to  the  said  Josie  M.  Sweet  upon  her  taking  and 
subscribing  the  oath  according  to  law  and  executing  a 
proper  bond. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Patrick  J.  Corrigan's  Estate. 

[Cause  No.  789;  filed  April  18,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  DECEDENTS'  ESTATES:  AMERICAN  SEAMEN  DYING  ABROAD.      Sees.  46 

and  50  of  the  Act  of  Congress  of  June  7,  1872  (Rev.  Stats.,  sees. 
4541,  4545),  relative  to  the  estates  of  American  seamen  dying 
"out  of  the  United  States,"  have  been  much  modified  by  sub- 
sequent legislation. 

2.  Id.  :    Legislation  :    The   Effect   of   such   legislation   has   been   to 

confer    upon   this    Court   the    authority,    relative   to   estates    of 
seamen  dying  in   China,  previously  exercised  by  federal  courts 
in  the  United   States. 
Z.  Id.  :  Procedure.     In  other  respects  the  procedure  prescribed  by  the 
original   act   remains   in   force. 

LOBINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  final  report 
of  the  Consular  Court  for  the  District  of  Shanghai,  and 
its  application  for  leave  to  distribute  the  estate  of  the 
deceased  who  died  here  about  February  20  last.  It  ap- 
pears from  an  affidavit  of  one  of  the  local  agents  of  the 
steamship  "Rosewood"  filed  in  this  Court,  that  the  dece- 
dent, at  the  time  of  his  death,  was  employed  on  said  ship 
as  a  seaman.     A  certificate  of  naturalization  also  appears 


718  I  EXTRATERRITORIAL  CASES. 

in  the  record  showing  that  the  deceased  had  been  admitted 
to  citizenship  by  the  Superior  Court  of  San  Francisco  on 
January  26,  1914.     The  report  above  mentioned  recites: 

"That  it  has  been  impossible  to  locate  the  address,  or  ascertain 
the  name,  of  any  living  relative  of  deceased;  and,  therefore,  under 
the  law,  the  assets  of  said  estate  should  be  forwarded  to  the  U.  S. 
District  Judge  for  the  Northern  District  of  California." 

This  recital,  it  appears,  is  based  upon  certain  sections 
of  the  act  of  Congress  of  June  7,  1872,^  since  incorporated 
in  the  Revised  Statutes.  Section  4541  of  the  latter  (sec. 
46  of  the  original  act)  reads  as  follows: 

"Whenever  any  such  seaman  or  apprentice  dies  at  any  place  out  of 
the  United  States,  leaving  any  money  or  effects  not  on  board  of  his 
vessel,  the  consular  officer  of  the  United  States  at  or  nearest  the 
place  shall  claim  and  take  charge  of  such  money  and  effects,  and 
shall,  if  he  thinks  fit,  sell  all  or  any  of  such  effects,  or  any  effects 
of  any  deceased  seaman  or  apprentice  delivered  to  him  under  the 
provisions  of  this  Title,  and  shall  quarterly  remit  to  the  district 
judge  for  the  district  embracing  the  port  from  which  such  vessel 
sailed,  or  the  port  where  the  voyage  terminates,  all  moneys  belonging 
to  or  arising  from  the  sale  of  the  effects  or  paid  as  the  wages  of 
any  deceased  seamen  or  apprentices  which  have  come  to  his  hands; 
and  shall  render  such  accounts  thereof  as  the  district  judge  requires." 

Section  4544  of  the  Revised  Statutes  (sec.  49  of  the 
original  act)  provides: 

"If  the  money  and  effects  of  any  seaman  or  apprentice  paid,  re- 
mitted, or  delivered  to  the  circuit  court,  including  the  moneys  received 
for  any  part  of  his  effects  which  have  been  sold,  either  before  delivery 
to  the  circuit  court,  or  by  its  directions,  do  not  exceed  in  value  the 
sum  of  three  hundred  dollars,  then,  subject  to  the  provisions  here- 
inafter contained,  and  to  all  such  deductions  for  expenses  incurred  in 
respect  to  the  seaman  or  apprentice,  or  of  his  money  and  effects, 
as  the  said  court  thinks  fit  to  allow,  the  court  may  pay  and  deliver 
the  said  money  and  effects  to  any  claimants  who  can  prove  them- 
selves either  to  be  his  widow  or  children,  or  to  be  entitled  to  the 
effects  of  the  deceased  under  his  will,  or  under  any  statute,  or  at 
common  law,  or  to  be  entitled  to  procure  probate,  or  take  out  letters 
of  administration  or  confirmation,  altho  no  probate  or  letters  of 
administration  or  confirmation  have  been  taken  out,  and  shall  be 
thereby  discharged  from  all  further  liability  in  respect  of  the  money 
and  effects  so  paid  and  delivered;  or  may,  if  he  thinks  fit  so  to  do, 
require  probate,  or  letters  of  administration  or  confirmation,  to  be 

'  17  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  322,  sees.  46-50,  pp.  272-3. 


IN  RE  CORRIGAN'S  ESTATE,  APR.   18,  1918.  719 

taken  out,  and  thereupon  pay  and  deliver  the  said  money  and  effects 
to  the  legal  personal  representatives  of  the  deceased;  and  if  such 
money  and  effects  exceed  in  value  the  sum  of  three  hundred  dollars, 
then,  subject  to  deduction  for  expenses,  the  court  shall  pay  and 
deliver  the  same  to  the  legal  personal  representatives  of  the 
deceased." * 

Section  4545  of  the  Revised  Statutes  (sec.  50  of  the 
original  act)  further  provided: 

"When  no  claim  to  the  wages  or  effects  of  a  deceased  seaman  or 
apprentice,  'received  by  a  circuit  court,  is  substantiated  within  six 
years  after  the  receipt  thereof  by  the  court,  it  shall  be  in  the  absolute 
discretion  of  the  court,  if  any  subsequent  claim  is  made,  either  to 
allow  or  refuse  the  same.  Such  courts  shall,  from  time  to  time, 
pay  any  moneys  arising  from  the  unclaimed  wages  and  effects  of 
deceased  seamen,  which,  in  their  opinion,  it  is  not  necessary  to  retain 
for  the  purpose  of  satisfying  claims,  into  the  Treasury  of  the  United 
States,  and  such  moneys  shall  form  a  fund  for,  and  be  appropriated 
to,  the  relief  of  sick  and  disabled  and  destitute  seamen  belonging 
to  the  United  States  merchant  marine  service." 

The  first  and  third  of  the  sections  above  quoted  have, 
however,  been  considerably  modified  by  subsequent  legis- 
lation. Thus  in  1897  section  4541  was  amended  by  sub- 
stituting "circuit  court"  for  "district  judge"  wherever  the 
latter  phrase  occurs."  By  the  same  act,  section  4545  was 
amended  so  as  to  read  as  follows :  * 

"A  circuit  court,  in  its  discretion,  may  at  any  time  direct  the  sale 
of  the  whole  or  any  part  of  the  effects  of  a  deceased  seaman  or 
apprentice,  which  it  has  received  or  may  hereafter  receive,  and  shall 
hold  the  proceeds  of  such  sale  as  the  wages  of  deceased  seamen  are 
held.  When  no  claim  to  the  wages  or  effects  or  proceeds  of  the  sale 
of  the  effects,"   etc., 

the  balance  of  the  section  being  unchanged. 

At  the  time,  therefore,  of  the  passage  of  the  Organic 
Act  of  1906  creating  this  Court,  and  defining  the  present 
jurisdiction  of  the  consular  courts,  all  authority  of  the  dis- 
trict judges  as  such  in  said  matters  had  ceased.  The  grant- 
ing of  the  present  application  would  be  further  complicated 

^  See  this  section  construed,  In  re  Holmberg's  Estate,  193  Fed.,  260. 
'Act  of  Congress  of  March  3,  1897,  Sess.  II,  29  U.  S.   Stats,  at 
Large,  Ch.  389,  sec.  4,  p.  689. 
'Id.,  sec.  7. 


720  I   EXTRATERRITORIAL  CASES. 

by  the  fact  that  "for  the  Northern  District  of  California" 
two  judges  are  now  provided.^ 

But  the  Organic  Act  above  mentioned  effected  numerous 
changes  in  the  jurisdiction  and  procedure  of  American 
courts  in  China.  Previously  the  appellate  tribunal  there- 
from was  the  Circuit  Court  for  the  District  of  California  ® 
for  which  this  Court  was  thereupon  substituted.^  More- 
over the  whole  system  of  administering  the  estates  of  de- 
cedents was  changed  by  this  legislation.^  It  was  provided 
that: 

"The  said  United  States  Court  for  China  shall  have  and  exercise 
supervisory  control  over  the  discharge  by  consuls  and  vice-consuls  of 
the  duties  prescribed  by  the  laws  of  the  United  States  relating  to  the 
estates  of  decedents  in  China  *  *  *  The  said  judge  shall  have 
pow^er  to  require  at  any  time  reports  from  consuls  or  vice-consuls 
in  respect  of  all  their  acts  and  doings  relating  to  the  estate  of  any 
such  deceased  person."  ° 

This  language,  it  will  be  seen,  is  broad  and  sweeping. 
This  Court  is  given  "control"  over  the  discharge  of  duties 
previously  prescribed  for  consuls  "relating  to  the  estate 
of  decedents  in  China"  which  would  include  the  estates 
of  seamen  and  the  consular  duties  required  by  the  act  of 
1872.  And  in  all  such  matters  the  Judge  of  this  Court 
is  empowered  to  require  reports  at  any  time.  The  con- 
ferring of  such  extensive  powers  upon  this  Court  would 
seem  to  exclude  their  exercise  by  any  other  court.  Con- 
gress could  hardly  have  intended  to  give  this  Court  "super- 
visory control"  with  power  to  require  reports  in  all  such 
cases  and  at  the  same  time  to  continue  the  authority  pre- 
viously enjoyed  by  circuit  courts  in  the  United  States  with 
reference  to  the  estates  of  seamen  dying  in  China  and 

"Act  of  Congress  of  March  3,  1911,  Sess.  Ill,  36  U.  S.  Stats,  at 
Large,  Ch.  231   (Judicial  Code),  sec.  1. 

'U.  S.  Revised  Statutes,  sees.  4093-4096;  see  The  Spark  v.  Lee 
Choi  Chum,  1  Sawy  (U.  S,),  713,  22  Fed.  Cas.  No.  13206  (1872); 
Tazaymcn  v.  Twombley,  5  Sawy  (U.  S.),  79,  23  Fed.  Cas.  No.  13810 
(1878). 

'Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Ch. 
3934,  sec.  2. 

*  In  re  Consul  General's  Report,  ante,  p.  291,  per  Thayer,  J. 

'34  U.  S.  Stats,  at  Large,  Ch.  3934,  sec.  2. 


IN  RE  CORRIGAN'S  ESTATE,  APR.   18,   1918.  721 

to  require  the  furnishing  of  reports  to  such  courts.  The 
whole  purpose  of  the  legislation  of  1906  was  to  centralize 
authority  in  a  tribunal  established  on  the  ground  and  the 
language  used  is  sufficiently  comprehensive  to  justify  the 
conclusion  that  all  authority  inconsistent  therewith,  and 
previously  exercised  by  other  tribunals,  was  taken  away. 

The  Judicial  Code  of  1911  effected  a  still  further  change 
in  the  legislation  here  reviewed  by  abolishing  the  circuit 
courts  ^'^  and  transferring  their  authority  and  jurisdiction 
to  the  district  courts. ^^  This  in  a  way  restored  the  orig- 
inal phraseology  of  the  Act  of  June  7,  1872,  for  the  phrases 
"district  judge"  as  there  used  and  "district  court"  as  em- 
ployed in  the  Judicial  Code  have  been  held  substantially 
equivalent. ^^  But  if  we  are  correct  in  our  view  that  the 
legislation  of  1906  had  already  transferred  such  authority 
to  this  Court,  as  regards  estates  in  China,  these  provisions 
of  the  Judicial  Code  had  no  effect  here. 

And  were  it  otherwise  the  same  result  would  seem  to 
follow.  For  the  original  Act  of  1872  conferred  the  author- 
ity in  question  upon  the  "judge  of  the  district  court  of 
the  port  from  which  such  ship  sailed,  or  the  port  where 
the  voyage  terminates."  ^^  It  appears  from  the  affidavit 
above  mentioned  that  the  voyage  of  the  ship  in  question 
terminated  at  Shanghai  and  this  Court  would  seem  to  meet 
the  designation  of  "the  district  court"  in  such  cases.  For 
even  territorial  courts  have  been  so  designated  ^*  and  if 
said  voyage  had  terminated  in  Hawaii  or  Alaska  it  would 
hardly  be  questioned  that  the  United  States  Courts  in 
those  localities  would  have  exercised  the  jurisdiction  here 
sought.  This  Court,  while  exercising  much  of  the  juris- 
diction commonly  possessed  by  a  state  court,  nevertheless 
derives  its  entire  authority  from  the  Federal  Government. 
It  is  exclusively  a  court  of  the  United  States  and  of  the 
three  grades  of  such  courts  it  naturally  belongs  in  the 
same  class  with  the  district  courts. 

"  Sec.  289  (see  note  5,  supra). 

"Id.,  sec.  291. 

''Tsoi  Yii  V.  U.  S.,  129  Fed.,  585;  U.  S.  v.  Gee  Lee,  50  Fed.,  271. 

"  17  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  322,  sec.  46. 

"  U.  S.  V.  Haskins,  3  Sawy.  262,  26  Fed.  Cas.  213. 

14008  O.  W. 46 


722  I  EXTRATERRITORIAL  CASES. 

We  hold,  therefore,  that  the  effect  of  the  legislation 
above  reviewed  is  to  confer  upon  this  Court  the  author- 
ity, as  regards  the  settlement  of  estates  of  American  sea- 
men dying  in  China,  previously  exercised  by  courts  in  the 
United  States.  In  other  respects  procedure  prescribed  by 
the  Act  of  June  7,  1872,  remains  in  force,  and  had  it 
appeared  from  any  of  the  reports  previously  furnished 
by  the  consular  court  in  this  case  that  it  involved  the 
estate  of  such  a  seaman  we  should  have  directed  the  en- 
tire assets  of  the  said  estate  to  be  forwarded  ^^  to  this 
Court  at  once.  As  it  is  we  can  only  treat  the  action  of 
the  consular  court  in  effecting  the  sale  of  the  assets  as 
having  been  taken  in  behalf,  and  under  the  direction,  of 
this  Court  and  henceforth  the  procedure  above  mentioned 
will  be  followed. 

It  is  accordingly  ordered  that  the  funds  now  in  the 
hands  of  the  consular  court  be  forwarded  to  this  Court 
for  disposition  '^  pursuant  to  the  provisions  of  the  Act  of 
June  7,  1872,  as  amended. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
hi  re  Henry  August  Jaeger's  Estate. 

[Cause  No.  613;  filed  April  26,  1918.] 

SYLLABUS. 

(By   the  Court.) 

1.  ADMINISTRATION  PROCEEDINGS:  Where  the  consular  court  has, 
in  good  faith,  assumed  jurisdiction  to  administer  an  estate, 
and  exercised  it  up  to   a  point  when   the  cause  was  found  to 

"In  re  Estate  (No.  89)  of  Robert  W.  Mustard,  deceased,  which 
had  been  administered  and  closed  by  order  of  the  Consular  Court 
for  the  district  of  Shanghai,  Thayer,  J.,  on  April  23,  1909,  rescinded 
said  order  and  caused  letters  testamentary  to  "reissue"  on  the  ground 
"that  additional  and  heretofore  undiscovered  property  of  said  estate 
has  been  found,  to  wit:  a  certain  portion  of  a  judgment  in  a  court 
of  the  State  of  New  York,  which  portion  is  hereafter  to  be  deter- 
mined, on  behalf  of  Robert  West  Mustard  and  Charles  C.  Bennett, 
co-partners,  doing  business  as  Mustard  and  Company  at  Shanghai, 
China,  against  one,  Howard  Martin,  for  the  sum  of  Gold  $2,218.05." 

"  They  were  afterward  distributed,  thru  the  Consul  General  at 
Melbourne,  to  a  proved  heir  in  Australia. 


IN  RE  JAEGER'S  ESTATE,  APR.   26,   1918.  723 

be  beyond  its  competency,  its  proceedings  may  be  adopted  and 
confirmed  by  this  Court. 
2.  Id.  :    Distribution   of   personalty   directed   in   accordance   with   the 
Act  of  Congress  of  March  3,  1901. 

M.  L.  Heen,  Esq.,  p7'o  se. 

LOBINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  petition  of 
M.  L.  Heen,  Esquire,  for  the  issuance  to  him  of  Letters 
of  Administration  in  the  above  entitled  estate.  The  first 
four  paragraphs  of  the  petition  are  as  follows : 

"1,  That  Henry  August  Jaeger,  deceased,  died  intestate  on  the 
30th  day  of  December,  1916,  in  the  International  Settlement  at 
Shanghai,  China,  leaving  surviving  him  a  widow  named  Nellie 
Everiet  Jaeger,  and  a  minor  daughter  named   Marion  Jaeger. 

"2.  That  on  the  5th  day  of  January,  1917,  a  petition,  a  certified 
copy  of  which  is  hereunto  attached  marked  exhibit  'A,'  was  entered 
and  filed  in  the  United  States  (American)  Consular  Court  at  Shang- 
hai, China,  by  the  said  Nellie  Everiet  Jaeger,  praying  that  the  said 
estate  be  administered  upon  and  that  your  petitioner,  M.  L.  Heen, 
Esquire,  be  appointed  administrator  to  serve  without  bond. 

"3.  The  petition  hereinbefore  mentioned  was  duly  heard  in  open 
Court,  evidence  being  produced  in  support  of  the  allegation  therein 
contained,  and  letters  of  administration,  a  certified  copy  of  which  is 
hereunto  attached  marked  exhibit  'B,'  were  duly  issued  and  granted 
to  the  said  M.  L.  Heen,  Esquire,  your  petitioner,  who  thereupon 
qualified  and  entered  upon  the  administration  of  the  aforesaid  estate 
without  giving  bond. 

"4.  That  some  time  after  the  appointment  of  your  petitioner  as 
administrator  of  the  aforesaid  estate  assets  came  into  his  hands 
belonging  to  the  said  estate  which  disclosed  the  fact  that  the  estate 
was  worth  more  than  $500  United  States  Currency  and  that  there- 
upon the  United  States  (American)  Consular  Court  at  Shanghai, 
China,  refused  to  act,  assigning  as  its  reason  therefor  that  the 
matter  was  without  its  jurisdiction." 

From  the  record  in  the  consular  court,  which  has  been 
transferred  here,  it  appears  that  decedent's  widow  asked 
for  the  appointment  of  petitioner  as  administrator  and 
that  letters  were  issued  to  him  accordingly,  under  which 
he  has  since  been  acting.  It  further  appears  that  tes- 
timony was  taken  in  support  of  the  petition,  that  a  notice 
to  creditors  was  duly  published  according  to  law  and  that 


724  ^   EXTRATERRITORIAL  CASES. 

more  than  the  required  six  months  have  elapsed  since  the 
date  of  such  publication. 

We  do  not  think  that  the  estate  should  be  subjected  to 
the  expense  and  delay  of  a  second  publication.  The  con- 
sular court  is  under  the  "supervisory  control"  ^  of  this 
Court  and  the  former's  proceedings  in  administration  cases 
are  subject  to  this  Court's  direction,  must  be  reported 
and  may  be  reviewed  at  the  latter's  instance.-  To  a  certain 
extent,  therefore,  the  proceedings  of  the  consular  court 
in  such  a  case  are  those  of  this  Court  and  it  would  seem 
quite  proper  for  the  latter  to  adopt  so  much  of  such 
proceedings  as  appear  to  be  regular  and  to  have  served 
the  purpose  intended.  Analogy  may  be  found  in  the 
removal  of  causes  from  a  state  to  a  federal  court,  the  latter 
usually  accepting  and  following  the  rulings  already  made 
in  the  former.^  The  maximum  lex  neminem  cogit  ad 
vana  seu  iymtilia  *  would  seem  applicable  and  it  would 
appear  both  vain  and  useless  to  repeat  steps  which  have 
been  regularly  taken  below.  For  where  the  consular 
court  has  in  good  faith  assumed  jurisdiction  and  exercised 
it  up  to  a  point  where  it  appears  that  the  case  really 
belongs  to  this  Court  nothing  would  be  gained  by  travers- 
ing here  the  same  ground  again  and  no  sound  rule  of 
practice  would  seem  to  be  infringed  by  confirming  and 
adopting  what  has  already  been  done. 

The  testimony  in  the  consular  court  will,  therefore,  be 
treated  as  having  been  taken,  and  the  publication  of  no- 
tice as  having  been  made,  under  the  authority  of  this 
Court  and  the  appointment  of  the  petitioner  as  adminis- 
trator is  hereby  confirmed,  tho  letters  of  administration 
must  issue  out  of  this  Court. 

The  petitioner  files  a  separate  application  for  leave  to 
pay  claims,  including  administrator's  fees,  and  to  distrib- 
ute the  balance.  It  appearing  that  the  deceased  left  sur- 
viving a  widow  and  only  one  child,  for  whom  it  seems  a 


'  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Ch. 
3934,  sec.  2. 
=  Id. 

'■'  Cyc,  XXXIV,  1318,  note  75  and  cases  cited. 
*  Broom's  Legal  Maxims   (8th  Am.  ed.),  252,  and  cases  cited. 


YING  NIANG  TZE  V.  ANDREWS  ET  AL.,  APR.  2  7,  1918.       725 

guardian  has  been  appointed  by  the  Territorial  Circuit 
Court  of  Hawaii,  distribution  is  governed  by  the  following 
provision : 

"If  there  be  a  widow  and  a  child  or  children,  or  a  descendant  or 
descendants  from  a  child,  the  widow  shall  have  one-third  only."  ° 

It  is  therefore  considered  and  adjudged — 

1.  That  all  claims  against  the  said  estate  not  presented  within 
six  months  from  the  date  of  said  publication  be  and  the  same  are 
hereby  barred; 

2.  That  Letters  of  Administration  issue  to  the  petitioner  upon  his 
taking  and  subscribing  the  oath  and  presenting  a  proper  bond  in 
the  sum  of  Shanghai  Taels  Three  Thousand   (Tls.  3,000.00)  ; 

3.  That  upon  receipt  of  said  letters  the  Administrator  is  author- 
ized to  pay  all  proper  claims  against  the  said  estate,  including  Court 
fees   and  the  fees  earned  by  him   as   administrator; 

4.  That  he  distribute  the  balance  of  the  assets,  two-thirds  to  the 
guardian  of  the  decedent's  minor  child  and  the  remaining  one-third 
to  the  decedent's  widow; 

5.  That  in  case  any  disagreement  should  arise  between  the  latter 
and  the  said  guardian  as  to  the  division  of  the  personal  property, 
the  same  be  sold  and  the  proceeds  distributed  in  the  same  proportion. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

YiNG  NiANG  TzE,  Plaintiff,  V.  Andrews  &  George, 
a  Corporation,  Defendant. 

[Civil  action  No.  201;   filed  April  27,  1918.] 

SYLLABUS. 

(By   the  Court.) 

1.  CONTRACTS:    EMPLOYMENT.     An   instrument   in   which   plaintiff   is 

"referred  to  as  the  Chinese  Manager  and  Director  *  *  be- 
comes a  Director  *  *  and  is  paid  a  salary  of.  Tls.  300  per 
month"  and  "for  such  salary  *  *  agrees  to  devote  the  best 
part  of  his  time  and  ability  to  the  furthering  of  the  interests 
of  the  Company"  evidences  a  contract  of  employment. 

2.  Id.  :    Interpretation.     "Such   salary"   found,   in   the   light  of  the 

surrounding  circumstances,  to  have  been  promised  plaintiff  for 
his  special  services  last  mentioned  and  not  as  director. 

'  Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  Sess. 
II,  Ch.  854,  sec.  375;  In  re  Noyes'  Estate,  ante,  p.  538;  In  re  Bassity's 
Estate,  ante,  p.  595. 


726  I  EXTRATERRITORIAL  CASES. 

3.  Id.  :  Id.  :  The  phrase  "best  part  of  his  time  and  ability"  construed 

to  mean  the  major  portion  of  each,  the  employment  of  which 
is  found  not  to  have  been  established. 

4.  Id.  :  Validity.     That  portion  of  the  contract  by  which  it  is  agreed 

that  plaintiff  "becomes   a   Director"   is   void   as   against  public 
policy. 

5.  Id.:    Termination.     The  settled  American   rule  is  that  a  contract 

of  emplo3mient  whose  duration  is  not  expressly  fixed  is  termin- 
able at  the  will  of  either  party. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  plaintiff. 
Messrs.  Jernigan,  Fessenden  &  Rose,  by  Mr.  Rose,  for 
defendant. 

LOBINGIER,  J.: 

The  plaintiff  sues  for  rescission,  and  at  the  same  time 
damages  for  the  breach,  of  a  contract  evidenced  by  the 
following  instrument  executed  by  himself  and  defendant, 
a  corporation  appearing  to  have  been  organized  under  the 
laws  of  Maine: 

"An  agreement  made  this  thirteenth  day  of  September,  One  thou- 
sand nine  hundred  and  sixteen,  between  Andrews,  von  Fischerz  & 
George  of  Shanghai,  China,  hereinafter  referred  to  as  the  Company 
of  the  one  part,  and  Mr.  Ying  Niang  Tze  of  Shanghai,  China,  here- 
inafter referred  to  as  the  Chinese  Manager  and  Director,  of  the  other 
part,  as  follows : 

Mr.  Ying  Niang  Tze  has  agreed  to  purchase  from  the  Company 
500  Shares  of  Tls.  50  each,  amounting  in  all  to  Tls.  25,000. 

"In  consideration  of  this  purchase  the  Company  agrees  that  Mr. 
Ying  Niang  Tze  becomes  a  Director  of  the  firm  and  is  paid  a  salary 
of  Tls.  300  per  month;  he  also  participates  in  the  profits  of  the  Com- 
pany in  the  same  way  as  any  of  the  other  Directors  or  Shareholders 
and  furthermore  he  is  entitled  to  Director's  fees. 

"For  such  salary  and  the  privilege  of  becoming  a  Director  of  the 
Company,  Mr.  Ying  Niang  Tze  agrees  to  devote  the  best  part  of 
his  time  and  -ability  to  the  furthering  of  the  interests  of  the  Com- 
pany, and  he  also  agrees  to  engage  one  or  two  good  shroffs  to  assist 
him. 

"It  is  further  understood  that  Mr.  Alfred  Black,  the  General  Man- 
ager of  the  Company,  arranges  with  Mr.  von  Fischerz  for  the  disposal 
of  his  Shares  and  sole  interest  in  the  business  to  Mr.  Ying  Niang 
Tze,  and  as  soon  as  all  the  arrangements  are  completed,  Mr.  Ying 
Niang  Tze  agrees  to  take  up  immediately  Tls.  25,000  worth  of  Shares. 

"Before  any  arrangements  are  entered  into  as  to  the  purchase  of 
the  Company's  Shares  by  Mr.  Ying  Niang  Tze,  it  is  agreed  that  he 


YING  NIANG  TZE  V.  ANDREWS  ET  AL.,  APR.  2  7,  1918.      727 

has  the  oppportunity  to  examine  the  books  of  the  Company  so  as 
to  satisfy  himself  and  his  friends  that  the  Company  is  a  sound  and 
paying  one,  but  before  this  privilege  is  allowed  him  or  any  one  whom 
he  likes  to  appoint  on  his  behalf  he  agrees  to  deposit  Tls.  2,000  in 
the  Hongkong  &  Shanghai  Banking  Corporation  in  the  name  of  Mr. 
Alfred    Black    and    himself. 

"It  is  further  agreed  that  if  Mr.  Ying  Niang  Tze  wishes  to  with- 
draw from  what  he  has  now  promised  to  do  in  the  way  of  purchasing 
the  Shares  and  becoming  a  Director  of  the  Company,  he  forfeits  the 
Tls.  2,000  but  if  on  the  other  hand  Mr.  Alfred  Black  cannot  arrange 
for  the  purchase  of  the  Shares,  it  is  agreed  that  the  Tls.  2,000  is  re- 
turned to  Mr.  Ying  Niang  Tze  or  if  on  examination  of  the  books  and 
Mr.  Ying  Niang  Tze  finds  that  the  profits  of  the  Company  are  not 
what  Mr.  Alfred  Black  has  told  him,  or  that  the  business  is  not  a 
paying  one,  then  he  is  entitled  to  the  return  of  the  Tls.  2,000. 

"Signed  by  the  above  named  An-  \ 

drews,  von  Fischerz  &  George,  J  "Andrews,      von      Fischerz      & 
in  the  presence  of  (Sgd.)  R.  S.  /      George.— (Sgd.)  Alfred 

DouGAL.   ^  [^      Black, 

"Signed  by  the  above  named  Mr.  /  General   Manager. 

Ying  Niang  Tze  in  the  presence  V  "(Sgd.)     Ying  Niang  Tze 
of  (Sgd.  in  Chinese  characters)    I  (in  Chinese  characters.) 

Chang  Lan  Ping."  j 

After  reciting  the  execution  of  said  instrument  the  plain- 
tiff proceeds  to  allege  that  he — 

"duly  purchased  said  shares  of  stock  as  provided  for  in  said  agree- 
ment and  was  then  elected  a  director  of  said  defendant  corporation 
as  provided  in  said  agreement;  that  said  plaintiff  thereafter  entered 
into  the  service  of  the  said  defendant  corporation  and  has  ever  since 
devoted  the  best  part  of  his  time  and  ability  to  furthering  the  interests 
of  said  defendant  as  in  said  agreement  provided;  that  plaintiff  has 
also  ever  since  his  said  election  as  director  engaged  and  supplied 
entirely  at  his  own  expense  two  good  shroffs  to  assist  him  as  in  said 
agreement  provided. 

"That  the  said  defendant  has  committed  a  breach  of  the  terms  and 
considerations  of  said  agreement  and  has  not  paid  plaintiff  his  said 
salary  for  the  months  of  March,  April,  May  and  June,  1917,  altho 
the  same  is  now  due  and  payable  and  has  been  demanded;  and  that 
said  defendant  has  not  paid  plaintiff's  director's  fees  which  plaintiff 
alleges  on  information  and  belief  amount  to  the  sum  of  Tls.  300  or 
thereabouts,  altho  plaintiff  has  repeatedly  demanded  the  same." 

Judgment  for  Tls.  26,200  and  costs  is  prayed. 

Defendant's  answer  denies — 

"that  plaintiff  has  devoted  the  best  part  of  his  time  and  ability  to 
furthering  the  interests  of  defendant  and  also  denies  that  plaintiflF 


728  I  EXTRATERRITORIAL  CASES. 

has  enpraged  two  good  shroffs  to  assist  him  as  alleged  in  said  par- 
agraph four"  or  "that  it  has  comrrvitted  a  breach  of  the  terms  and 
condtions  of  said  agreement  as  in  said  paragraph  five  alleged  or  any 
breach  whatever  and  defendant  further  alleges  that  it  has  been  at  all 
times  ready  and  willing  to  perform  and  has  offered  to  perform  its 
part  of  said  contract  but  that  plaintiff  has  wholly  refused  and  failed 
to  devote  the  best  part  of  his  time  and  attention  to  furthering  the 
interests  of  said  defendant  and  has  wholly  refused  and  failed  to 
engage  good  and  competent  shroffs  to  assist  plaintiff.  In  further 
answer  to  said  paragraph  five  of  said  petition  defendant  denies  that 
there  are  any  director's  fees  due,  owing  or  payable  to  plaintiff." 

II. 

Plaintiff's  averment  that  he  has  "devoted  the  best  part 
of  his  time  and  ability  to  furthering  the  interests  of  said 
defendant  as  in  said  agreement  provided"  is  an  essential 
one  for  without  it  his  pleading  would  be  subject  to  demurrer 
for  failure  to  state  a  cause  of  action.^  And  in  order  to 
obtain  either  rescission  of  the  contract  or  damages  for  its 
breach  plaintiff  must  prove  that  averment. 

The  phrase  "best  part  of  his  time  and  ability"  may  not 
be  a  technical  one  (for  the  contract,  it  appears,  was  not 
drawn  by  a  lawyer)  but  we  do  not  think  it  ambiguous. 
In  a  comparatively  recent  case  -  a  contract  required  the 
plaintiff  "to  devote  his  best  energies  to  the  sale  of  the 
defendant's  product"  and  while  this  was  held  not  to  re- 
quire his  "exclusive  attention"  the  court  considered  it — 

"apparent  that  'best  energies'  meant  such  effort  as  in  the  exercise 
of  sound  judgment  would  be  likely  to  produce  the  most  profitable 
results  to  the  defendant  in  view  of  the  nature  of  the  business  and 
the  extent  of  territory  over  which  it  was  to  be  conducted." 

So  here  we  are  of  the  opinion  that  the  clause  used  in 
the  contract  did  not  require  the  plaintiff  to  devote  all  his 
time  and  ability  to  furthering  the  interests  of  the  defend- 
ant company  but  we  are  disposed  to  agree  with  defendant's 
counsel  that  the  phrase  "best  part"  includes  at  least  the 
major  portion  of  each. 

We  do  not  think,  however,  that  the  plaintiff  shows  that 
he  devoted  any  such  portion  of  either  his  time  or  his  abil- 

'Encyc.  of  PI.  &  Pr.,  IV,  628. 

'  Randall  v.  Peerless  Motor  Car  Co.,  212  Mass.,  352,  99  N.  E.,  221. 
Cf.  McLane  v.  Maurer,  28  Tex.  Civ.  App.,  75,  66  S.  W.,  693. 


YING  NIANG  TZE  V.  ANDREWS  ET  AL.,  APR.  27,  1918.      729 

ity  to  that  purpose.  He  testifies  indeed  that  he  was  present 
at  the  office  on  business  days  "sometimes  one  hour,  and 
sometimes  an  hour  more,  and  sometimes  two  hours."  But 
this  is  contradicted  by  defendant's  witnesses  who  say  that 
he  rarely  remained  more  than  a  half  hour,  did  not  come 
at  all  on  some  days  and  came  less  frequently  after  the  first 
month.  It  is  true  that  the  contract  does  not  specify  the 
place  where  plaintiff's  time  and  ability  were  to  be  em- 
ployed and  that  the  mere  fact  that  he  was  not  at  the  office 
would  not  of  itself  disclose  noncompliance.  But  we  still 
think  it  incumbent  on  plaintiff  to  show  that  his  time  and 
ability  were  employed  somewhere  for  the  required  purpose. 
The  most  that  he  claims  on  this  point  is  that  "all  the  busi- 
ness of  the  firm  was  always  in  my  mind."  But  in  view 
of  the  undisputed  fact  that  plaintiff  was  at  the  time  in- 
terested in  several  other  lines  of  business  to  one  of  which, 
similar  to  that  of  defendant,  he  was  devoting,  according 
to  a  not  unfriendly  witness  (Roche)  about  half  his  time, 
we  feel  that  something  more  precise  and  specific  was  re- 
quired from  the  plaintiff  in  order  to  prove  compliance 
with  this  clause  of  the  contract. 

It  is  also  urged  that  defendant's  import  department  was 
already  taken  care  of  by  others  and  that  it  had  no  proper 
organization  for  exporting.  But  it  would  seem  that  the 
establishment  of  such  an  organization  would  have  afforded 
a  very  appropriate  field  for  plaintiff's  activities  and,  from 
the  general  manager's  testimony,  was  one  of  the  purposes 
of  employing  him.  Nor  does  it  appear  that  he  might  not 
have  undertaken  to  extend  the  import  business  independ- 
ently of  the  company's  existing  staff.  At  any  rate  without 
a  specific  showing  that  plaintiff  made  attempts  in  these 
directions,  which  were  hindered  or  prevented  by  circum- 
stances beyond  his  control,  we  are  unable  to  find  that  this 
essential  averment  has  been  established. 

III. 

Wholly  aside  from  the  foregoing  it  will  be  seen  that 
the  principal  breach  complained  of  by  plaintiff  is  the  failure 
to  pay  his  monthly  salary  of  Tls.  300.00  beginning  with 
March,  1917.     Plaintiff's  contention  is  that  he  was  to  re- 


730  I   EXTRATERRITORIAL   CASES. 

ceive  the  salary  as  a  director  and  that  if  he  acted  as  a 
director,  which  it  is  conceded  he  did,  he  was  complying 
with  the  contract.  But  it  appears  that  none  of  the  other 
directors,  outside  of  the  general  manager  received  any 
salary.  Moreover,  it  will  be  seen  that  in  the  contract 
plaintiff  is  "referred  to  as  the  Chinese  Manager  and  Di- 
rector" and  defendant's  representative  testifies  that  the 
chief  purpose  of  making  the  arrangement  by  which  plain- 
tiff should  become  associated  with  the  company  was  that 
its  business  might  be  extended  among  the  Chinese.  This 
appears  more  reasonable  than  to  assume  that  the  company 
intended  to  single  out  plaintiff  as  the  one  director  to  re- 
ceive a  salary  in  discrimination  against  the  others.  The 
condition  upon  which  plaintiff  was  to  receive  "such  salary" 
seems  to  have  been  that  he  "devote  the  best  part  of  his  time 
and  ability  to  furthering  the  interests  of  the  company." 

Indeed  if  we  were  to  adopt  plaintiff's  contention  that  he 
was  promised  "such  salary"  as  a  director  only,  he  would 
find  himself  in  an  even  worse  plight.  For  the  clause  in 
the  contract  by  which  "the  company  agrees  that  Mr.  Ying 
Niang  Tze  become  a  Director"  is  by  the  American  law 
contrary  to  public  policy.  The  power  to  choose  corporate 
officers  belongs  exclusively  to  the  shareholders  and  a  con- 
tract which  attempts  to  impair  it  is  void.^ 

Neither  party  has  questioned  the  validity  of  this  contract 
and  plaintiff,  by  asking  its  rescission,  assumes  its  validity.* 
We  need  not,  therefore,  stop  to  determine  whether  it  is 

'Federal.  West  v.  Calnden,  135  U.  S.,  507,  34  L.  ed.,  254,  10  Sup. 
Ct.,  838. 

Kansas.     Noel  v.  Drake,  28  Kan.,  265,  42  Am.  Rep.,  162. 

Massachusetts.  Woodruff  v.  Wentworth,  133  Mass.,  309;  Noyes 
V.  Marsh,  123  Mass.,  286;  Guernsey  v.  Cook,  120  Mass.,  501,  117  Mass., 
548. 

Michigan.     Wilbur  v.  Stoepel,  82  Mich.,  344,  46  N.  W.,  724. 

Minnesota.     Dickson  v.  Kittson,  75  Minn.,  168,  77  N.  W.,  820. 

New  Hampshire.     Harris  v.  Scott,  67  N.  H.,  437,  32  Atl.,  770. 

New  Jersey.     Cone  v.  Russell,  48  N.  J.  Eq.,  208,  21  Atl.,  847. 

New  York.     Fennessey  v.  Ross,  39  N.  Y.  Supp.,  323. 

North  Dakota.     Gage  v.  Fisher,  5  N.  D.,  297,  65  N.  W.,  809. 

Texas.     Withers  v.  Edmonds,  26  Tex.  Civ.  App.,  189,  62  S.  W.,  795. 

Utah.     Flagstaff,  etc.  Co.  v.  Patrick,  2  Utah,  304. 

*  Gillespie  v.  Battle,  15  Ala.,  276,  285. 


YING  NIANG  TZE  V.  ANDREWS  ET  AL.,  APR.  2  7,  1918.       731 

void  in  toto.  But  the  clause  regarding  the  directorship 
certainly  is,  and  if  it  were  inseparable  from  the  salary- 
provision  the  latter  would  necessarily  be  void  also.  Under 
either  construction,  therefore,  plaintiff  could  not  recover 
on  that  clause. 

Plaintiff  does  not  claim  to  have  acted  under  the  contract 
until  November,  1916,  and  it  is  undisputed  that  he  was 
paid  for  that  and  the  three  following  months.  If  the  sub- 
sequent non-payment  constituted  a  breach  it  was  only  such 
if  defendant  was  obliged  under  the  contract  to  continue 
the  employment  for  a  longer  time.  But  it  will  be  seen 
that  the  contract  fixes  no  definite  term.  Plaintiff's  counsel 
argues  that  he  was  entitled  to  continue  the  employment 
and  to  receive  the  salary  as  long  as  he  retained  his  owner- 
ship of  the  shares.  But  the  American  rule  is  that  where 
the  duration  of  a  contract  of  employment  is  not  expressly 
fixed  it  is  terminable  at  the  will  of  either  party.^ 

'Federal     Wilder  v.  U.  S.,  5  Court  of  Claims,  462. 

Alabama.  Howard  v.  East  Tennessee  etc.  R.  Co.,  91  Ala.,  268,  8 
So.,  868;  but  see  Moss  v.  Decatur  etc.  Co.,  93  Ala.,  269. 

Arkansas.     Haney  v.  Caldwell,  35  Ark.,  156. 

California.  De  Briar  v.  Minturn  1  Cal.,  450;  Lord  v.  Goldberg, 
81  Cal.,  596,  22  Pac,  1126. 

Colorado.     K.  P.  R.  Co.  v.  Roberson,  3  Col.,  142. 

Delaware.     Greer  v.  Arlington  etc.  Co.,  1  Penne.,  581,  43  Atl.,  609. 

Illinois.     Orr  v.  Ward,  73  111.,  318  (tried  before  Gary,  J.) 

Kentuckij.  Louisville  etc.  R.  Co.  v.  Offutt,  99  Ky.,  427,  59  Am.  St. 
Rep.,  467,  36  S.  W.,  181;  Louisville  etc.  R.  Co.  v.  Harvey,  99  Ky.,  157, 
34  S.  W.  1069;  Perry  v.  Wheeler,  12  Bush,  541. 

Maryland.  McCullough  Iron  Co.  v.  Carpenter,  67  Md.,  554,  11  Atl., 
176. 

Massachusetts.     Harper  v.  Hassard,  113  Mass.,  187. 

Missouri.  Finger  v.  Brewing  Co.,  13  Mo.  App.,  310;  Evans  v.  R. 
Co.,  24  Mo.  App.,  114. 

New  York.  Martin  v.  N.  Y.  L.  Ins.  Co.,  148  N.  Y.,  117,  42  N. 
E.,  416;  Copp  V.  Colorado  etc.  Co.,  46  N.  Y.  Supp.  542,  20  Misc.,  702. 

North  Carolina.  Edwards  v.  Seaboard  R.  Co.,'  121  N.  C,  490,  28 
S.  E.,  137. 

Oregon.     Christensen  v.  Borax  Co.,  26  Or.,  302,  38  Pac,  127. 

Pennsylvania.  Coffin  v.  Landis,  46  Pa.  St.,  426;  Peacock  v.  Cum- 
mings,  Id.,  434;  Kirk  v.  Hartman,  63  Pa.  St.,  97. 

Rhode  Island.     Booth  v.  Nat.  etc.  Co.,  19  R.  I.,  696,  36  Atl.,  714. 

Wisconsin.     Prentiss  v.  Ledyard,  28  Wis.,  131. 


732  I   EXTRATERRITORIAL   CASES. 

"In  England,"  says  Mr,  Wood,'  "it  is  held  that  a  general  hiring, 
or  a  hiring  by  the  terms  of  which  no  time  is  fixed,  is  a  hiring  by 
the  year.  *  *  *  With  us,  the  rule  is  inflexible  that  a  general  or 
indefinite  hiring  is,  pnnia  facie,  a  hiring  at  will." 

If,  therefore,  plaintiff  had  elected  to  terminate  at  the 
end  of  February,  1917,  or  even  of  November,  1916,  that 
part  of  the  agreement  which  required  him  to  ''devote  the 
best  part  of  his  time  and  ability  to  furthering  the  interests 
of  the  Company"  he  might,  under  the  doctrine  above  stated, 
have  done  so  with  impunity.  And  the  rule  works  both 
ways.  So  long  as  neither  party  saw  fit  to  require  that  the 
contract  fix  a  definite  term  for  said  arrangement  the  de- 
fendant as  well  as  the  plaintiff  was  authorized  to  terminate 
it  after  the  first  month.'  And  such  appears  to  have  been 
the  effect  of  the  notice  given  by  defendant's  manager,  as 
testified  to  by  several  Vv^itnesses,  that  defendant  would  pay 
no  more  salary.  Plaintiff  may  not  thereby  have  ceased  to 
be  a  director  but  the  special  employment  as  "Chinese 
Manager,"  for  which  the  salary  seems  to  have  been  in- 
tended, did,  we  think,  terminate. 

The  only  other  breach  alleged  in  the  petition  is  the  non- 
payment of  "plaintiff's  director's  fees  which  plaintiff  al- 
leges on  information  and  belief  amount  (to)  the  sum  of 
Tls.  300  or  thereabouts."  No  evidence  is  offered  in  sup- 
port of  this  last  allegation  nor  to  the  effect  that  fees  have 
been  paid  to  or  earned  by  any  of  the  directors  during  the 
period  of  plaintiff's  incumbency.  On  the  other  hand  de- 
fendant's manager  testifies  that  plaintiff  "is  entitled  to  the 
director's  fees  of  the  next  annual  meeting"  which  will 
occur  "about  the  end  of  the  month;"  and  in  the  absence 
of  any  proof  that  such  fees  are  available  to  the  other  di- 

'  Master  and  Servant  (2d  ed.),  sec.  136. 

"As  to  the  English  rule  that  a  general  hiring  shall  be  taken  to  be 
a  hiring  for  a  year  (2  Chitty's  Cont.,  841),  we  have  not  found  any 
American  case  which  recognizes  it,  and  we  think  it  has  not  been 
adopted  in  this  country.  In  England,  the  rule  stands  on  custom  and 
usage,  and  it  is  not  contended  that  any  such  usage  prevails  in  this 
country  (2  Pars.  On  Cont.,  32-33  n)."  Hallett,  C.  J.,  in  K.  P.  R. 
Co.  v.  Roberson,  3  Col.,  146. 

'  Louisville  etc.  R.  C.  v.  Harvey,  99  Ky.,  157,  34  S.  W.,  1069. 


UNITED   STATES  V.   ANTONIO,   MAY    3,    1918.  733 

rectors  before  that  time  we  are  unable  to  find  that  there 
has  been  a  breach  of  the  contract  in  that  connection. 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
take  nothing  by  his  petition  and  that  defendant  recover 
its  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Pablo  Antonio. 

[Cause  No.  649;  filed  May  3,  1918.] 

SYLLABUS. 
(By   the   Court.) 

1.  SLANDER.     While  at  common  law  slander  is  not  a  crime,  under  an 

Act  of  Congress  extended  to  this  jurisdiction  a  false  imputation 
against  female  chastity  is  penalized  by  fine  or  imprisonment  or 
both. 

2.  Id.  :  Justification.     It  is  not  a  sufficient  justification  for  one  who 

repeats  or  circulates  such  a  charge  that  he  heard  it  from  another. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Frank  W.  Hadleij,  Esq.,  for  the  defense. 

Lobingier,  J.: 

The  defendant,  an  American  subject  (Filipino),  is  ac- 
cused of  having  made  a  false  charge  of  unchastity  in  using 
of  and  concerning  the  complaining  witness 

"Words  in  the  Tagalog  language,  of  the  tenor  following:  'Si  *  *  * 
ay  bina  babaye  ni  *  *  *,  and  which  being  translated  into  the 
English  language,  is  as  follows:  'Mrs.  *  *  *  has  committed  adult- 
ery with     *     *     *.'  " 

The  victim  of  this  alleged  charge  is  a  Filipina,  eight 
years  married,  who  has  been  the  mother  of  five  children, 
two  of  whom  are  now  living.  It  is  admitted  by  the  accused 
himself  that  the  charge  is  without  the  slightest  foundation. 
Indeed  he  states  that  he  has  known  her  for  seven  or  eight 
years  and  that  her  conduct  and  reputation  are  both  good. 
He  denies  that  he  made  the  charge  at  all ;  but  four  wit- 
nesses testify  that  he  told  them  substantially,  and  for  the 


734  I  EXTRATERRITORIAL  CASES. 

most  part  separately,  what  is  alleged  in  the  information. 
Among  these  were  the  husband  of  the  complaining  witness 
and  her  brother-in-law  and  it  naturally  followed  that  the 
husband  was  greatly  distressed  especially  as  the  com- 
plaining witness  was  then  absent  in  Manila.  A  telegram 
purporting  to  have  been  sent  to  her  by  her  brother-in-law 
is  produced  in  evidence,  reading:  "Come  immediately 
*     *     *      (the  husband)   in  great  trouble." 

This  testimony  does  not  bear  the  marks  of  collusion. 
Indeed  there  are  certain  differences  which  defendant's 
counsel  refers  to  as  contradictory ;  but  the  discrepancies 
do  not  appear  to  be  greater  than  such  as  would  arise  among 
various  individuals  relating  circumstances  some  time  after 
they  occurred.  Moreover,  we  agree  with  the  District  At- 
torney that  there  is  no  adequate  motive  which  would  lead 
the  husband  and  brother-in-law  of  this  woman  falsely  to 
charge  the  accused  with  having  made  such  a  statement; 
for  the  effect  upon  themselves  and  their  family  of  giving 
it  publicity  could  be  nothing  else  than  disagreeable  in  the 
extreme.  No  reason  appearing,  therefore,  why  the  wit- 
nesses for  the  prosecution  should  not  be  believed,  their 
testimony  being  corroborated  by  the  telegram  in  question. 
and  defendant's  denial  being  without  corroboration,  we 
have  no  alternative  but  to  give  credit  to  their  testimony  in 
preference  to  his. 

It  is  true  that  the  witnesses  declare  that  the  accused  in 
making  the  statement  to  them  claimed  to  have  heard  it 
from  another  Filipina,  But  in  testifying  for  himself  ac- 
cused makes  no  such  claim  and  it  would  not  have  consti- 
tuted a  defence  if  he  had  actually  proven  such  a  claim. 
For  one  cannot  justify  defamation  by  quoting  another.' 
It  would  not  do  to  permit  a  party  to  escape  the  consequences 
of  such  a  cruel  imputation  upon  a  worthy  and  highly 
respectable  wife  and  mother  by  merely  attributing  it  to 
someone  else.  A  woman's  reputation  cannot  be  exposed  to 
any  such  peril  and  one  who  circulates  false  rumors  con- 
cerning it  must  assume  the  responsibility  therefor  and  ac- 
cept the  consequences. 


'  Cyc,  XXV,  415. 


KING  PING  KEE.V.  FOOD  MFG.  CO.,  MAY  10,  1918.         735 

Slander  (i.  e.,  unwritten  defamation)  was  not  a  crime 
at  Common  Law,-  but  under  the  Act  of  Congress  of  March 
3,  1901,  which  is  in  force  here  as  regards  those  under 
American  jurisdiction : 

"Whoever  wrongfully  accuses  any  woman  of  unchastity  shall  be 
punished  by  a  fine  not  exceeding  five  hundred  dollars  or  by  imprison- 
ment not  exceeding  one  year,  or  both,  and  shall  also  be  liable  to  a 
civil  action  for  damages  by  the  party  injured."  ^ 

The  defendant  is  hereby  sentenced  to  three  months  of 
imprisonment  to  be  served  in  the  prison  for  American  con- 
victs in  Shanghai,  unless  transferred  elsewhere,  and  to 
pay  the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

King  Ping  Kee,  Plaintiff,  v.  American  Food  Manufac- 
turing Co.,  Defendant. 

[Cause  No.  619;  filed  May  10,  1918.] 

SYLLABUS. 

(By   the   Court.) 

1.  CONTRACTS:     INTERPRETATION.     The    rule    of    contra    proferentem 

applied. 

2.  Id.  :  Damages  :  Loss  of  Profits  constitutes  a  proper  item  of  damage 

for  a  breach  of  contract  only  so  far  as  it  could  reasonably  have 
been  foreseen  by  the  parties  when  the  contract  was  made. 

3.  Id.  :    Statute  of  Frauds.     Before  partial   delivery  may   afford  a 

substitute  for  the  required  memorandum,  the  contract  itself  must 
be  established. 

4.  Id. :  Employment:  Termination.     A  notice,  which  does  not  by  its 

terms  take  effect  at  once,  to  terminate  a  contract  of  emplojmient, 
will  not  relieve  the  employee  from  his  obligation  to  perform  a 
subsidiary  contract,  at  least  so  long  as  he  continues  in  the 
employer's   service. 

5.  SET-OFF:    WHEN   Allowed.     In   American   law   set-off  is   "allowed 

in  actions  founded  upon  contract  and  only  of  obligations  spring- 
ing from  contract." 

6.  Id.:    Distinguished:   A  Counterclaim  may  arise  from  any  cause 

of  action,  including  a  tortious  one,  provided  it  be  "connected 
with  the  subject  of  the  action." 

'  Id.,  569. 

'  31  U.  S.  Stats,  at  Large,  Ch.  854,  Sess.  11,  sec.  818. 


736  I  EXTRATERRITORIAL  CASES. 

7.  Id.  :  In  Extraterritorial  Courts.  "So  far  as  set-off  is  a  defence 
{i.  e.,  'to  the  extent  of  the  claim  asserted')  it  may  be  pleaded" 
against  an  alien  plaintiff  in  an  American  extraterritorial  court. 

Messrs.  Fleming  &  Davies,  by  A/r.  Davies,  for  plaintiff. 
Messrs.  Rodger  &  Haskell,  by  Mr.  Haskell,  for  defendant. 


LOBINGIER,  J.: 

Plaintiff  sues  to  recover  money  advanced  and  salary 
earned  under  a  written  contract  by  which  he  became  de- 
fendant's compradore  agreeing  to  furnish  it — 

"With  advance  money  as  may  be  needed  to  purchase  goods  up  to 
the  amount  of  Tls.  20,000." 

The  instrument  further  provided — 

"That  this  agreement  shall  continue  in  force  for  the  period  of 
three  years  from  date.  If  the  compradore  breaks  the  conditions  of 
this  agreement  the  company  may  discharge  him  by  giving  one  month's 
notice,  and  he  shall  have  all  money  due  him  paid  at  the  end  of  that 
month.     The  compradore  w^ill  have  the  same  right." 

The  prayer  is  for  Mexican  $1,768.47  as  "advance  money" 
and  Shanghai  Tls.  400  salary. 

Defendant's  answer  admits  the  nonpayment  of  the 
amounts  claimed  and  alleges  that  the  same  are  not  due  be- 
cause plaintiff  has  failed  to  comply  with  the  requirements 
of  the  contract.  By  way  of  set-off  it  claims  damages  in 
the  sum  of  Mexican  $1,666.66  as  a  result  of  plaintiff's 
failure  to  pay  defendant's  compradore  order  for  Tls.  300 ; 
damages  in  the  sum  of  Mexican  $714  for  breach  of  a 
subsequent  contract  to  deliver  eggs  during  October,  1917 ; 
and  damages  in  the  sum  of  Mexican  $813.60  for  failure  to 
comply  with  a  second  subsequent  contract  to  deliver  eggs 
during  November,  1917. 

Plaintiff's  claim  for  salary  is  not  disputed,  it  being  ad- 
mitted that  he  continued  as  compradore  for  three  months 
and  was  paid  for  the  first  only.  Of  his  claim  for  advance- 
ments, items  amounting  to  Mexican  $636.39  are  undisputed, 
and  three  additional  items  of  salaries  paid  to  agents  are 
admitted,  making  a  total  of  Mexican  $797.39.  The  balance 
of  the  amount  claimed  by  plaintiff  is  alleged  to  have  been 
either  advanced  without  authority  or  to  have  been  properly 


KING  PING  KEE  V.  FOOD  MFG.  CO.,  MAY  10,  1918.        737 

chargeable  to  his  own  account.  Part  of  this  balance  is  for 
expenses  in  maintaining  agencies  in  the  interior.  The  con- 
tract expressly  provides  (par.  11)  that  while  these  agents 
"shall  be  under  the  control  of  the  compradore"  the  salaries 
of  themselves  and  their  assistants  "shall  be  paid  by  the  com- 
pany." The  item  of  expenses  on  the  part  of  these  agents  is 
not  expressly  mentioned  in  the  contract;  yet  it  must  have 
been  contemplated  by  the  parties  for  it  could  hardly  have 
been  supposed  that  the  agents  themselves  would  defray  the 
expenses  of  the  company's  agencies.  Plaintiff  testifies, 
and  it  is  not  denied,  that  it  is  the  Chinese  custom  to  pay 
employees'  expenses.  On  the  other  hand,  defendant's 
general  manager  testifies  that  "we  had  a  dispute  about 
*  *  *  the  agency  expenses"  and  that  this  was  definitely 
settled  "in  one  of  the  later  agreements."  Now  this  was 
the  second  subsequent  contract  already  mentioned  of  No- 
vember 5  and  the  provision  referred  to  is  as  follows: 

"That  the  Compradore  will  pay  all  the  expenses  of  maintaining 
the  different  egg  agencies  including  salaries,  rent,  egg  baskets,  etc., 
for  the  month  of  October,  1917,  and  the  months  thereafter." 

Since  under  this  plaintiff's  liability  is  expressly  limited 
to  "the  month  of  October,  1917,  and  the  months  thereafter" 
and  since  the  expenses  now  in  question  were  incurred  during 
September,  we  are  of  the  opinion,  in  view  of  all  of  the 
foregoing,  that  defendant  is  fairly  chargeable  with  said 
expenses.  The  original  contract  appears  to  have  been 
drawn  by  it,  the  payment  of  salaries  assumed  by  it  and 
expenses  which  must  have  been  foreseen  should  we  think 
have  been  expressly  excluded  if  defendant  desired  to  avoid 
liability  therefor.  The  rule  of  contra  proferetem — i.  e.,  that 
the  instrument  is  to  be  construed  most  strongly  against  the 
one  who  prepared  it — seems  to  apply.^ 

The  only  remaining  question  under  this  branch  of  the 
case  is,  What  properly  are  expenses?  The  first  disputed 
item  of  $12.56  for  postage  stamps  and  supplies  appears  to 
be  fairly  included  in  that  category.  But  defendant's  gen- 
eral manager  testifies  that  he  did  not  authorize  the  ex- 
penditure of  the  second  item  of  $180  for  baskets  and  that 


^  Corpus  Juris,  XIII,  545. 

14008  O.  W. 47 


738  I  EXTRATERRITORIAL  CASES. 

during  September  the  company  was  not  engaged  in  the 
chicken  business  for  which  the  baskets  were  supposed  to 
have  been  purchased.  The  burden  was  upon  plaintiff  to 
show  that  these  were  necessary  items  of  expenditure  and 
we  do  not  think  that  he  has  met  the  burden.  He  states 
that  defendant's  agents  now  have  the  baskets  and  that  they 
can  be  used  ten  times.  Plaintiff  is  therefore  entitled  to 
claim,  and  should  be  able  to  use,  them  but  we  do  not  find 
that  they  are  a  proper  charge  against  the  defendant,  and 
the  same  observations  apply  to  the  other  items  of  $38t) 
and  $95  for  similar  expenditure. 

Plaintiff  testifies  that  the  item  of  $15.69  was  a  balance 
due  for  chickens  purchased  for  defendant  and  that  the  item 
of  $6  was  for  sieves  used  in  its  business.  This  does  not 
seem  to  be  overcome  by  any  testimony  on  the  part  of  de- 
fendant. Plaintiff  says  further  that  he  spent  $10  for  a 
trip  to  Yangchow  on  company  business  and  the  defendant's 
general  manager  merely  says  that  he  does  not  know 
whether  plaintiff  went  on  such  business  or  not.  The  item 
of  $17.35  for  miscellaneous  expenses  plaintiff  says  covered 
telegrams,  postage  and  other  sundi'ies  which  appear  to  be 
fairly  included  under  expenses.  Defendant's  manager  says 
that  he  did  not  authorize  these  but  does  not  say  that  they 
were  not  necessary  for  the  maintenance  of  the  business. 
The  item  of  $462.52  for  the  agency  at  Chinkiang  includes 
the  $380  already  mentioned  for  chicken  baskets  and  the 
item  of  $285.59  for  the  agency  at  Tsingkiangpu  includes 
the  $95  for  the  same  sort  of  expenditure,  which  has  al- 
ready been  disposed  of.  The  item  of  $10  for  troughs 
seems  to  belong  in  the  same  category.  The  balance  of  the 
claims  for  expenses  at  the  three  agencies,  including  $142.07 
for  the  agency  at  Yangchow,  for  which  plaintiff  testifies 
that  he  made  out  statements  to  defendant's  general  man- 
ager, do  not  seem  to  be  sufficiently  impugned  to  prevent 
their  inclusion  as  proper  expenses  under  the  rule  above 
adopted.  Excluding  the  baskets  and  troughs  the  total  of 
these  disputed  items  aggregates  $466.78  which,  being  added 
to  the  amount  of  $797.39  already  mentioned,  makes  a 
grand  total  of  $1,264.17,  which  we  find  the  plaintiff  is 
fairly  entitled  to  claim. 


KING  PING  KEE  V.  FOOD  MFG.  CO.,  MAY  10,  1918.        739 
II. 

As  we  have  seen,  however,  defendant  pleads  a  set-off 
aggregating  much  more  than  this  amount.  The  English 
rule  is  that  in  an  extraterritorial  court  a  counter-claim 
cannot  be  pleaded  against  an  alien  plaintiff.- 

In  the  American  law  of  pleading  a  distinction  is  made 
between  a  counter-claim  and  a  set-off,  the  latter  being 
"allowed  in  actions  founded  upon  contract  and  only  of 
obligations  springing  from  contract."  ^  A  counter-claim  on 
the  other  hand  may  arise  out  of  any  cause  of  action,  even 
a  tortious  one,  provided  it  be  "connected  with  the  subject 
of  the  action,"  *  and,  of  course,  where  it  exceeds  the  original 
demand,  judgment  is  regularly  rendered  in  defendant's 
favor  for  the  excess.^  The  American  rule  for  actions  in 
an  extraterritorial  court  is  that  "so  far  as  set-off  is  a 
defense  (i.  e.,  to  'the  extent  of  the  claim  asserted'  by  an 
alien  plaintiff)  it  may  be  pleaded."  '^  Of  course  no  judg- 
ment may  be  rendered  in  such  a  court  against  an  alien  ;^ 
but  any  claim  which  he  proves   may  be   reduced  to  the 

'Imperial  Japanese  Government  v.  P.  &  O.  Co.,  A.  C.  (1895),  644- 
660,  where  the  original  action  and  the  counterclaim  both  sounded  in 
tort.     See  ante,  p.  31  note. 

'Bliss,  Code  Pleading  (3d  ed.),  sec.  370. 

^Id.,   sec.   371. 

'  Cyc,  XXXIV,  761. 

"  Opinion  of  Attorney-General  Speed,  ante,  p.  27. 
So  in  the  English  case: 

"While  their  Lordships  are  of  opinion  that  the  counterclaim  ought 
not  to  be  allowed,  the  views  they  have  expressed  will  not  interpose  any 
obstacle  to  the  respondents  using  every  means  of  defence  to  the  ap- 
pellants' claim.  If  they  can  show  that  the  Chishima  was  alone  to 
blame,  or  that  the  Revenna  was  not  to  blame,  they  will  succeed  in  de- 
feating it.  If  it  should  appear  that  both  vessels  were  to  blame  a 
question  of  some  difficulty  may  arise.  It  is  clear  that  the  plaintiffs, 
according  to  the  law  administered  in  the  Admiralty  Court,  could 
recover  in  that  case  no  more  than  one-half  of  the  damage  they  have 
sustained.  It  is  further  clear  that  if  there  were  a  cross-suit  upon 
which  the  Court  was  competent  to  adjudicate,  the  damage  sustained 
by  both  vessels  would  be  ascertained,  each  would  bear  half  of  the 
total  loss."  Imperial  Japanese  Government  v,  P.  &  0.  Co.,  (1895) 
A.  C,  659. 

'Id. 


740  I  EXTRATERRITORIAL  CASES. 

extent  of  another  claim  established  against  him  by  the 
defendant  so  far  at  least  as  the  latter  is  founded  on  con- 
tract. This  appears  to  be  an  equitable  rule,  fair  to  both 
parties  and  subject  neither  so  strongly  to  the  objection  in 
the  English  case  above  cited  nor  to  the  claim  '  that  extra- 
territoriality operates  unfairly  against  those  for  whose 
benefit  it  is  designed.  With  the  rule  in  mind,  therefore, 
we  may  proceed  to  consider  the  set-off  pleaded  by  de- 
fendant. 

As  already  mentioned,  the  first  of  these  is  a  claim  for 
damages  alleged  to  have  resulted  from  plaintiff's  failure 
to  pay  a  compradore  order  for  Tls.  300.  Plaintiff  admits 
that  he  did  fail  to  pay  it  and  defendant's  contention  is  that 
it  was  thereby  prevented  from  purchasing  tin  for  canning 
chickens  and  that  during  the  month  of  September  it  could 
have  canned  and  sold  five  hundred  tins  per  day  at  a  net 
profit  of  $1,200.  Defendant's  manager  shows  that  he 
protested  against  this  non-payment  but  neither  in  the  letter 
which  he  wrote  nor  elsewhere  does  it  appear  that  plaintiff's 
attention  was  called  to  the  loss  of  expected  profits  for 
which  defendant  now  claims  damages,  nor  that  the  former 
had  reason  to  suppose  that  such  results  would  follow.  On 
the  contrary  plaintiff  testifies  that  he  understood  defendant 
to  be  a  wealthy  corporation,  having  been  informed  that  its 
capital  was  G.  $500,000. 

The  rule  as  to  the  measure  of  damages  in  such  a  case 
was  thus  stated  by  Baron  Alderson  in  a  decision  ^  which 
has  since  become  classic: 

"Where  two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in  respect 
of  such  breach  of  contract  should  be  such  as  may  fairly  and  reason- 
ably  be   considered   either   arising   naturally,  i.   e.,   according  to   the 

'  Tyau,  Legal  Obligations  Arising  from  China's  Treaty  Relations 
(1917),  53,  54. 

"  Hadley  v.  Baxendale,  2  C.  L.  R.,  517,  9  Exch.,  341,  18  Jur.,  358, 
23  L.  J.  Exch.,  179,  2  Wkly.  Rep.,  302,  26  Eng.  L.  &  Eq.,  398,  5  Eng. 
Ruling  Cases,  504  (1854).  "So  entirely  is  the  later  law  founded  on 
this  case  that  the  great  body  of  cases  since  decided,  involving  the 
measure  of  damages  for  breach  of  contract,  resolve  themselves  into 
a  continuous  commentary  upon  it."  Sedgwick,  Damages  (9th  ed.) 
263,  note. 


KING  PING  KEE  V.  FOOD  MFG.  CO.,  MAY  10,  1918.        741 

usual  course  of  things,  from  such  breach  of  contract  itself,  or  such 
as  may  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties,  at  the  time  they  made  the  contract,  as  the  probable 
result  of  the  breach  of  it.  Now,  if  the  special  circumstances  under 
which  the  contract  was  actually  made  were  communicated  by  the 
plaintiffs  to  the  defendants,  and  thus  known  to  both  parties,  the 
damages  resulting  from  the  breach  of  such  a  contract,  which  they 
would  reasonably  contemplate,  would  be  the  amount  of  injury  which 
would  ordinarily  follow  from  a  breach  of  contract  under  these  special 
circumstances  so  known  and  communicated.  But  on  the  other  hand, 
if  these  special  circumstances  were  v/holly  unknown  to  the  party 
breaking  the  contract,  he,  at  the  most,  could  only  be  supposed  to 
have  had  in  his  contemplation  the  amount  of  injury  which  would  arise 
generally,  and  in  the  great  multitude  of  cases  not  affected  by  any 
special  circumstances,  from  such  a  breach  of  contract.  For,  had  the 
special  circumstances  been  known,  the  parties  might  have  specially 
provided  for  the  breach  of  contract  by  special  terms  as  to  the  damages 
in  that  case;  and  of  this  advantage  it  would  be  very  unjust  to  deprive 
them." 

This  rule  has  not  only  been  generally  adopted  in 
America  i°  but  is  also  substantially  the  same  as  that  of 
the  civil  law  "  from  which  indeed  it  appears  to  have  been 
derived  ^"  and  under  it  the  damages  claimed  could  not 
properly  be  awarded  against  plaintiff. 

The  next  item  of  set-off  is  a  claim  for  damages  for  breach 
of  an  alleged  contract  with  plaintiff  to  deliver  eggs  during 
the  month  of  October.  Plaintiff  denies  that  he  made  any 
such  contract  and  the  only  testimony  that  he  did  is  that  of 
defendant's  general  manager.  It  is  true  that  the  latter 
appears  to  have  written  him  a  letter  (Ex.  "3")  stating 
that  such  an  agreement  had  been  made  but  this  is  no  better 
evidence  than  the  general  manager's  own  testimony,  and 
no  written  memorandum  of  such  a  contract  is  produced 
altho  the  alleged  value  of  the  eggs  to  be  delivered  far  ex- 
ceeded the  amount  of  G.   $50  which  consequently  would 


"  Cyc,  XIII,  33. 

^^  France.     Civ.  Code,  art.  1150. 
Germany.     Civ.  Code,  art.  252. 
Japan.     Civ.  Code,  art.  416. 
Louisutna.     Rev.  Civ.  Code,  art.  1934    (I). 
Spain.     Civ.  Code,  arts.  1105,  1107. 

''Bowas  V.  Pioneer  Tow  Line,  2  Sawy.  (U.  S.),  21,  30;  3  Fed.  Cas., 
1713,  p.  1028. 


742  I  EXTRATERRITORIAL  CASES. 

have  brought  it  within  the  Statute  of  Frauds  and  required  it 
to  be  in  writing.^ '  It  is  true  also  that  an  exception  is  made 
in  case  of  partial  delivery  but  we  find  no  more  testimony  on 
that  point  than  the  general  manager's  statement  that  the 
plaintiff  "only  delivered  I  think  180  baskets,"  and  as  it 
does  not  sufficiently  appear  that  the  minds  of  the  parties 
met  on  a  contract  under  which  these  were  delivered,  we 
are  unable  to  allow  this  item  of  set-off. 

The  third  and  last  claim  is  for  the  failure  to  comply 
with  a  written  contract  alleged  to  have  been  signed  by 
plaintiff  on  November  5,  1917,  and  providing 

"that  he  will  gTiarantee  to  deliver  to  them  (the  Amos  Bird  Company) 
in  November,  4,250  baskets  of  egg^,  each  basket  to  contain  at  least 
1,000  e^rgs,  and  as  many  more  baskets  as  he  can. 

"(3)  That  the  Compradore  will  pay  to  the  American  Food  Mfg. 
Co.,  Ltd.,  2%  commission  of  the  price  received  from  the  Amos  Bird 
Co.  for  such  eggs  for  October  and  months  to  follow.  Such  commis- 
sion to  be  paid  to  this  company  at  the  end  of  each  month  beginning 
with  November  30th  and  this  settlement  shall  include  the  commis- 
sion for  October  and  November." 

The  plaintiff  does  not  deny  the  execution  of  this  contract. 
His  counsel  objects  to  the  admission  of  the  instrument  in 
evidence  on  the  ground  that  "it  was  entered  into  between 
these  parties  at  a  date  later"  than  the  contract  sued  upon, 
thereby  at  least  implying  its  genuineness.  This  item  of 
set-off  arises  upon  a  contract  which,  as  we  have  seen,  is  all 
that  is  required.  The  claim  need  not  necessarily  be  con- 
nected with  the  subject  of  the  original  action,  tho  we 
think  this  one  is,  for  its  evident  purpose  was  to  utilize 
the  relation  of  principal  and  compradore. 

Plaintiff's  counsel  further  contends  that  plaintiff  was 
prevented  from  carrjdng  out  this' contract  by  defendant's 
letter  (Ex.  "F")  of  November  21  notifying  plaintiff  that 
defendant  had  secured  a  new  compradore  and  "should  like 
to  have  him  assume  office  as  soon  as  possible."  But  plain- 
tiff himself  states  that  he  "acted  as  compradore  until  the 
end  of  November"  and  that  he  did  not  leave  the  defendant's 
employ  until  December  2.     Clearly  then  since  he  continued 


"  Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  1119;  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch. 
786,  Tit.  II,  sec.  1044   (5). 


SUNG  PING  SUNG  V.  ROBT.  DOLLAR  CO.,  MAY  17,  1918.  743 

SO  to  act  he  was  not  prevented  from  performing  the  con- 
tract to  dehver  eggs  during  November.  Indeed  it  is  not 
at  all  clear  that  even  if  he  had  left  earlier  he  would  have 
been  absolved  from  the  requirements  of  this  contract  which 
does  not  appear  to  have  been  dependent  upon  the  exercise 
of  his  duties  as  compradore. 

Defendant  alleges,  and  we  think  proves,  that  it  had 
secured  a  purchaser  for  these  eggs  at  a  price  of  $10.00  a 
basket  which  would  have  yielded  it  a  profit  of  twenty  cents 
per  basket  or  a  little  more  than  its  total  claim  of  $813.60. 
This  amount  must  have  been  fairly  within  the  contempla- 
tion of  the  parties;  the  provisions  governing  it  are  clearly 
and  specifically  set  forth  in  an  instrument  which  plaintiff 
does  not  deny  having  signed;  and  we  find  no  legal  reason 
for  relieving  him  from  his  admitted  failure  to  perform  it. 
The  item  of  $813.60  which  defendant  shows  that  it  lost 
by  virtue  of  such  failure  must,  therefore,  be  deducted 
from  plaintiff's  claim  already  estimated  as  established  at 
$1,264.17.  The  balance  is  Mexican  $450.57  for  which 
amount,  together  with  the  sum  of  Shanghai  Tls.  400  by 
way  of  salary,  judgment  is  accordingly  rendered  in  favor 
of  plaintiff  and  against  the  defendant;  and  as  the  latter 
has  made  no  offer  to  pay  any  amount  plaintiff  is  also  en- 
titled to  his  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Sung  Ping  Sung,  doing  business  under  the  name  and 
style  of  Chong  Kee,  Plaintiff,  v.  The  Robert  Dol- 
lar Company,  a  Corporation,  Defendant. 

[Cause  No.  578;  filed  May  17,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRACTS:    PERFORMANCE:    QUESTION  OF  Law.     Whether  articles 

furnished  under  a  contract  comply  with  its  specifications  is  a 
question  of  law. 

2.  Id.     The    American    law    does    not    exact    literal    compliance    with 

such  specifications. 

3.  Id.  :   Substantial  Performance  is,  nevertheless,  required  and  that 

phrase  must  be  interpreted  with  reference  to  the  purposes  for 
which  the  goods  were  ordered. 


744  I  EXTRATERRITORIAL  CASES. 

4.  Id.  :   Entire.     If  part  only  of  a  consi^ment,  furnished  under  an 

entire  contract,  substantially  complies  with  the  specifications 
the  vendee  is  not  obliged  to  accept  delivery. 

5.  Id.:  Rule  Applied.     Where  plaintiff  ordered  for  sale  to  retailers  a 

quantity  of  nails  which  were  found  to  vary  in  great  part  from 
the  specifications,  proof  of  substantial  performance  must  include 
a  showing  that  the  variations  will  not  affect  salability  in  the 
retail   trade. 

6.  Id.  :  Advance  Payment.     Without  such  a  showing  the  vendor  is  not 

entitled  to  retain  advance  payments. 

Messrs.  E.  W.  Godfrey  and  Jernigan,  Fessenden  &  Rose, 
by  Mr.  Rose,  for  plaintiff. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  defendant. 

LOBINGIER,  J.: 

The  plaintiff  who  is  a  "general  metal  dealer  in  Hankow" 
brings  this  action  to  recover  advance  payments  made  on 
contracts  of  which  the  petition  alleges : 

"3.  That  on  or  about  the  15th  day  of  March,  1916,  plaintiff  and 
defendant  entered  into  a  certain  contract  or  contracts  in  writing 
whereby  plaintiff  agreed  to  buy  from  defendant  and  defendant  agreed 
to  sell  to  plaintiff  4,000  and  1,000  kegs  of  nails  upon  the  terms  and 
conditions  in  the  aforesaid  contract  or  contracts  set  forth. 

"4.  That  one  of  the  terms  and  conditions  of  the  aforesaid  con- 
tract or  contracts  is  a  warranty  on  the  part  of  the  said  defendant 
that  the  aforesaid  nails  shall  conform  to  and  be  in  accordance  with  a 
certain  specification  in  said  contract  of  contracts  set  forth.     *     *     *. 

"7.  *  *  *  plaintiff  on  or  about  the  15th  day  of  March,  1919, 
paid  or  caused  to  be  paid  to  the  said  Chartered  Bank  of  India,  Aus- 
tralia and  China  or  to  defendant  the  respective  sums  of  Hankow  Tls. 
14,400  and   Tls.  3,600.     *     *     *. 

"12.  That  on  or  about  the  12th  day  of  December,  1916,  plaintiff 
notified  defendant  that  the  whole  quantity  of  nails  tendered  by  de- 
fendant did  not  conform  to  and  were  not  in  accordance  with  the  spec- 
ification in  said  contract  or  contracts  set  forth  and  that  plaintiff 
would  not  accept  the  nails  tendered  by  defendant  in  performance  of 
the  aforesaid  contract  or  contracts  and  at  the  same  time  made  de- 
mand upon  defendant  for  the  return  of  the  bargain  money  deposited 
as  aforesaid." 

The  prayer  is  for  judgment  in  the  sum  of  Hankow 
Tls.  18,000  with  interest  at  6  per  cent  per  annum  from  the 
date  of  payment. 

None  of  the  foregoing  averments  are  expressly  denied, 


SUNG  PING  SUNG  V.  ROBT.  DOLLAR  CO.,  MAY  17,  1918.  745 

and  the  first  three  are  expressly  admitted,  in  defendant's 
answer  which  further — 

"alleges  that  the  nails  tendered  the  plaintiff  herein  pursuant  to  the 
terms  of  said  contracts  were  according  to  the  specifications  mentioned 
therein  and  that  the  shipment  of  the  same  was  made  according  to  and 
in  compliance  with  the  terms  and  conditions  of  said  contracts;  and 
defendant  denies  each  and  every  allegation  in  said  petition  contained 
that  is  inconsistent  herewith." 

This  last  averment  raises  the  one  issue  to  which  the 
case  was  finally  reduced  before  trial  and  practically  all 
of  the  evidence  relates  to  the  single  question  whether  "the 
nails  tendered  *  *  *  were  according  to  the  specifi- 
cations." 

The  contracts  (Ex.  "A"  and  "B")  provide  that  "specifi- 
cation is  guaranteed  *  *  *  as  per  copy  on  the  back 
of  this  contract,"  the  indorsement  of  the  first  being  as 
follows : 

"SPECIFICATION    FOR    4,000    KEGS    WIRE    NAILS. 
1"X16     14X15     lixU     11X13     2"xl3 


394  356  364  666  692 

24x12     2^X11     23X1.0     3"X10     3Jx9 


384  416  32  223  144 

4"X8    4JX7     5X6     6X5     6Jx4    7"x4 


148         80  64  14  7  16 

It  is  conceded  that  plaintiff  never  accepted  any  portion 
of  the  nails  and  that  the  defendant  has  the  whole  consign- 
ment as  well  as  30%  of  the  purchase  price.  In  order  to 
justify  its  retention  defendant  must  show  that  plaintiff 
was  at  fault  in  not  accepting  delivery  and  that  the  nails 
were  of  such  a  quality  as  he  had  no  right  under  the  con- 
tract to  reject. 

To  avoid  the  burden  of  inspecting  the  entire  contents 
of  the  five  thousand  kegs  the  parties,  thru  their  respective 
counsel,  entered  into  an  arrangement  under  which  the 
consular  court  marshal  at  Hankow  in  the  presence  of  said 
counsel  "took  samples  of  each  keg  of  nails  which  was 
opened  by  order  of  the  litigant"  and  attached  the  same  as 
exhibits  to  a  deposition  which,  pursuant  to   stipulation, 


746  I  EXTRATERRITORIAL  CASES. 

has  been  received  in  evidence.  There  are  seventy-five 
of  these  exhibits,  each  containing  three  nails,  and  an  in- 
spection w^as  made  in  open  court  by  one  of  defendant's 
witnesses  v^ho  tested  the  samples  w^ith  a  "Stubs  Wire 
Gauge"  (pp.  19-32)  which  is  admitted  (p.  40)  to  be 
"exactly  the  same  as  the  Birmingham  Wire  Gauge,"  the 
latter  being  agreed  by  all  the  witnesses  (pp.  5,  9,  40,  60, 
61)  to  be  the  gauge  generally  used  for  the  hardware  trade 
in  China.  According  to  this  witness  a  large  proportion 
of  the  samples  varied  one  gauge  or  more  from  the  spec- 
ifications. Defendant's  counsel  objects  that  the  witness 
"had  no  scientific  or  technical  knowledge  on  the  subject"  but, 
as  he  elsewhere  concedes,  "it  does  not  require  any  partic- 
ular training  or  education  to  test  a  nail." 

Another  witness  whose  deposition  was  taken  at  Hankow, 
states  that  out  of  sixteen  different  samples  which  he  exam- 
ined only  three  were  found  to  gauge  correctly.  Counsel 
again  objects  that  the  nails  which  this  witness  examined 
are  not  identified  but  on  cross-examination  he  testified 
(dep.  p.  3)  that  his  own  firm  had  been  "negotiating  to 
purchase  a  good  portion  of  these  particular  nails  from 
The  Robert  Dollar  Company ;"  they  are  also  referred  to 
(dep.  p.  6)  as  "the  five  thousand  kegs;"  and  plaintiff 
(dep.  pp.  5,  7)  refers  to  the  nails  in  question  as  those 
which  the  said  witness  inspected.  The  identification  seems, 
therefore,  to  be  sufficient. 

But  we  have  not  relied  upon  these  witnesses  alone,  nor 
chiefly,  for,  following  the  suggestion  of  defendant's  counsel 
in  his  brief  that  the  court  examine  the  samples  and  make 
its  own  test,  such  an  inspection  has  been  made  with  the 
result  that  out  of  the  entire  225  samples  only  5.78%  are 
found  to  conform  exactly  to  the  specifications,  while  prac- 
tically 17%  vary  more  than  one  gauge  therefrom. 

II. 

In  construing  a  contract  for  the  construction  of  a  monu- 
ment the  Vermont  Supreme  Court  declared  ^  that — 

"It  was  a  question  for  the  court  to  say  whether  the  monument  wag 
a  compliance  with  the  contract," 

'Cutler   V.    Dix,    (57    Vt.,    347,   31    Atl.,    780. 


SUNG  PING  SUNG  V.  ROBT.  DOLLAR  CO.,  MAY  17,  1918.  747 

and  that  it  was  error  to  submit — 

"to  the  jury  the  question  whether  the  variations  shown  were  a 
departure  from  the  contract." 

The  court  further  said  in  its  opinion — 

"While  many  of  the  variations  were  so  slight  that  essentially  they 
were  such  as  the  contract  called  for,  there  were  others  that  we  must 
hold  were  a  substantial  departure  from  the  contract.  Thus  the  plinth 
was  more  than  12  per  cent  longer,  and  the  cap  more  than  28  per  cent 
thicker,  than  the  contract  dimensions." 

It  will  be  seen  that  the  average  percentage  of  these  two 
departures  is  about  the  same  as  that  shown  by  our  test. 

The  American  law  does  not  exact  a  literal  compliance 
with  the  terms  of  such  a  contract.^  Thus  a  variation  of 
one  eleven-hundredth  ^  or  even  of  one  seventy-fifth  *  from 
the  requirements  as  to  quantity  will  be  overlooked  in 
accordance  with  the  maxim  de  minimis  non  curat  lex; 
but  an  exhaustive  search  has  disclosed  no  case  where  a 
difference  of  17%,  or  anything  approaching  that  much,  was 
excused.  For  the  law  does  require  a  substantial  perform- 
ance '"  and  that  requirement  must  be  applied  with  reference 
to  the  purposes  of  the  contract.  In  the  case  at  bar  it  is 
conceded  that  the  nails  were  contracted  for  in  order  to  be 
resold  by  plaintiff  to  small  Chinese  dealers  and  we  have 
to   determine   whether,   in   view  of  the   variations   above 

=  Nebraska.     Craig  v.  Weitner,  33  Neb.,  484,  50  N.  W.,  442. 

New  York.  Desmond-Dunne  Co.  v.  Friedman-Doscher  Co.,  162  N. 
Y.,  486,  56  N.  E.,  995,  and  cases  cited. 

Pennsylvania.     Bailey  v.   Wayman,  201  Pa.,  249,  50  Atl.,  767. 

Vermont.     Drew  v.   Goodhue,  74  Vt.,   436,   52  Atl.,   971. 

Wisconsin.     Meincke  v.  Falk,  55  Wis.,  427,  13  N.  W.,  545. 

'  Drew  V.  Goodhue,  74  Vt.,  436,  52  Atl.,  971. 

'Desmond-Dunne  Co.  v.  Friedman-Doscher  Co.,  162  N.  Y.,  486,  56 
N.  E.,  995. 

'^Federal.  Heine  Safety  Boiler  Co.  v.  Francis  Bros.  &  Jollett,  117 
Fed.,   235. 

Ohio.     Mehurin  v.  Stone,  37  0.  St.,  49. 

Vermont.     Cutler  v.   Dix,  67   Vt.,  347,  31   Atl.,  780. 

Washington.  Schmidt  v.  North  Yakima,  12  Wash.,  121,  40  Pac, 
790. 

Wisconsin.     McDonald  v.  Gardner,  56  Wis.,  35,  13  N.  W.,  689. 

See  also  Page  on  Contracts,  III,  sec.  1389. 


748  I  EXTRATERRITORIAL  CASES. 

shown,  and  which  are  not  disputed  by  any  of  defendant's 
testimony,  there  was  such  a  substantial  performance  as 
would  have  enabled  plaintiff  to  resell  without  meeting  ob- 
jections as  to  quality.  In  the  state  of  the  pleadings  above 
outlined  we  are  of  the  opinion  that  the  burden  of  proof 
rested  upon  defendant  to  show  such  performance  and  in 
reviewing  the  testimony  we  shall  consider  first  that  of 
defendant's  witnesses  in  order  to  ascertain  how  it  has  met 
that  burden. 

In  the  cross-examination  of  defendant's  co-manager 
the  following  occurs   (pp.  71,  73,  74)  : 

"Q.  Would  you  consider  the  Chinaman  in  normal  times  would 
have  been  entitled  to  reject  those  goods  as  not  being-  up  to  specifica- 
tion? 

"A.  He  would. 

<<^  *  *  *  *  *  * 

"Q.  I  would  ask  you  to  reconsider  your  previous  answer;  do  you 
say  that  as  a  cargo,  as  a  whole,  this  was  up  to  specification;  apart 
from  war  conditions  it  was  up  to  specification? 

"A.  No,  I  would  not;  in  those  few  cases  I  would  think  they  were  too 
much. 

«ic  ^  4(  4:  He  4!  * 

"Q.  What  I  want  to  know  is  whether  they  would  be  entitled  to 
reject  it. 

"A.  I  think  they  would;  whether  they  would  be  entitled  to  reject  all 
that  is  the  point. 

"Q.  You  think  they  would  be  entitled  to  reject  a  portion? 

"A.  Yes,  a  portion  of  the  cargo." 

As  to  this  last  point  the  law  has  thus  been  stated  in  an 
instruction  which  was  approved  by  a  court  of  high  stand- 
ing— 

"If  there  was  a  material  variation  between  what  he  contracted  for 
and  what  they  furnished,  there  could  be  no  recovery.  In  that  case 
there  could  be  no  recovery,  even  for  a  part.  This  was  an  entire  con- 
tract, under  which  Philips,  Nimick  &  Co.  agreed  to  furnish  375  plates, 
and  the  defendant  was  not  bound  to  accept  pai't  of  those  plates  and 
pay  for  part  of  them.  He  was  entitled  to  a  performance  of  the  con- 
tract as  a  whole."  ° 

Another  of  defendant's  witnesses  whose  testimony  coun- 
sel contends  is  "of  great  value  because  he  is  in  charge  of 
the  import  department  of  a  large  American  commercial 

"  Bailey  v.  Wayman,  201  Pa.,  249,  50  Atl.,  767. 


SUNG  PING  SUNG  V.  ROBT.  DOLLAR  CO.,  MAY  17,  1918.  749 

house  and  had  a  large  experience  with  the  metal  trade," 
testifies  on  cross-examination  as  follows  (pp.  57,  58)  : 

"Q.  Merchants,  dealers  contracting  for  nails  to  be  imported  always 
specify  the  particular  numbers  of  the  gauges  which  they  require? 

"A.  Yes. 

"Q.  And  if  they  want  nails  of  gauge  15  they  will  order  nails  of 
gauge  15  specifically? 

"A.  Yes. 

"Q.  Apart  from  war  conditions,  would  you  consider  that  if  a  dealer 
ordered  nails  of  15  gauge  and  you  supplied  him  with,  say,  14  gauge, 
that  you  had  carried  out  your  contract? 

"A.  No,  I  think  that  is  a  little  bit  too  large. 

"Q.   The  difference  is  too  large. 

"A.  Yes.  If  we  ordered  15  and  they  went  into  14  too  easily  I  would 
think  that. 

"Q.  And  apart  from  war  conditions,  you  wouldn't  consider  strictly 
that  you  had  carried  out  your  specification? 

"A.  If  there  was  a  whole  gauge  difference  I  would  not. 

<<^  :{:  :f;  :}:  :J:  :{:  ^ 

"Q.  Suppose  you  had  a  nail  li"  by  15  gauge  specification  and 
the  nails  arrived  too  large  for  a  14  and  too  small  for  a  13? 

"A.  And  supposed  to  be  15? 

"Q.  Yes,  and  arrived  between  13  and  14. 

"A.  The  gauge  then  would  be  between  13  and  14. 

"Q.  As  an  importer  you  wouldn't  consider  that  you  had  carried  out 
your  contract. 

"A.  That  is  too  large  a  leeway. 

"Q.  Suppose  you  specified,  for  instance,  nails  of  1"  by  16  gauge 
and  the  goods  received  were  between  14  and  15,  that  is,  too  small  for 
14  and  too  large  for  15,  you  wouldn't  consider  that  as  carrying  out 
your  contract? 

"A.  That  is  too  much. 

"Q.  Suppose  you  specified  31"  by  9  gauge  and  the  nails  on  delivery 
were  too  small  for  7  and  too  large  for  an  8? 

"A.  Too  big  a  difference  if  it  comes  down  to  a  real  show-down. 

"Q.  Would  the  same  apply  to  specification  3"  by  10  gauge  where  the 
gauge  was  found  to  be  between  8  and  9? 

"A.  The  same." 

Our  test  shows  that  nearly  20%  differed  "a  whole 
gauge"  or  more — mostly  more — from  the  specifications, 
which,  according  to  the  witness  just  quoted,  would  con- 
stitute a  failure  of  compliance. 

Still  another  witness  for  defendant,  a  civil  engineer, 
gave  the  following  testimony  on  cross-examination  (p.  51)  : 

"Q.  In  determining  whether  or  not  these  samples  came  up  to  specifi- 
cation, if  you  found  the  variation  of  one  gauge  either  way  in  a  nail 


750  I  EXTRATERRITORIAL  CASES. 

for  which  the  specifications  called  for  3"  by  10,  would  you  consider 
that  that  sample  was  up  to  specifications;  the  specification  is  3"  by  10 
but  you  found  it  varied  one  gauge  either  way? 
"A.  No,  I  wouldn't,  not  quite. 

<(:,;  s|:  *  *  *  *  * 

"Q.  If  a  dealer  came  to  you  with  a  sample  of  a  nail  the  specifications 
in  the  contract  were  H"  by  15  and  the  nail  gauge  li"  by  14,  would  you 
consider  that  the  nail  supplied  was  up  to  the  specifications? 

"A.  Well,  it  is  not  the  same  as  the  specification  but  I  would  advise 
him  to  accept  it." 

In  reply  to  defendant's  counsel,  on  re-direct  examination, 
the  same  witness  testified  (p.  53)  : 

"Q.  Would  you  consider  it  was  a  substantial  compliance? 
"A.  If  you  go  by  the  actual  letter  of  the  specification  it  is  not. 
"Q.  You  as  an  architect,  you  would  consider  it  as  compliance  and 
accept  it? 

"A.  I  would  accept  it." 

It  will  be  observed  that  according  to  this  witness  the 
"substantial  compliance"  which  the  law  requires  is  lacking 
here. 

Defendant  called  also  another  engineer  who  stated  (p. 
43)  that  his  experience  had  been  "entirely  with  the  use 
of  nails"  and  who  expressed  the  opinion  (p.  44)  that  "for 
actual  use  *  *  *  the  variation  of  one  gauge  either 
way  would  not  make  any  difference  in  the  common  nail." 
He  added,  however  (p.  43)  : 

"I  wouldn't  say  that  the  gauge  is  immaterial;  I  would  say  that  if 
I  were  ordering  one-inch  nails  I  would  expect  to  get  the  gauge  near 
the  standard." 

Defendant  also  called  an  architect  who  stated  (p.  48) 
that  he  had  never  given  an  order  for  nails  but  that  in 
his  work  as  an  architect  he  would  consider  immaterial  a 
variation  of  not  more  than  one  gauge. 

As  to  both  of  these  last  mentioned  witnesses  it  must 
be  remembered  that  our  test  showed  that  nearly  17%  of 
these  nails  varied  more  than  one  gauge,  while  out  of  108 
samples  tested  by  the  witness  first  above  mentioned  25% 
varied  to  the  same  extent  according  to  our  test.  More- 
over, we  must  also  remember  that  plaintiff  was  ordering 
not  for  his  own  use  nor  for  actual  construction  purposes 


SUNG  PING  SUNG  V.  ROBT.  DOLLAR  CO.,  MAY  17,  1918.     751 

but  only  for  sale  and  that  in  such  a  case  it  is  not  sufficient 
that  the  commodity  offered  by  the  vendor  is  "equally  as 
good"  for  some  purposes  as  that  ordered  by  the  vendee; 
for  the  latter  is  entitled  to  receive  the  precise  article  for 
which  he  contracted.^  In  one  case  where  the  contractor 
in  constructing  a  burial  vault  used  four  marble  slabs  where 
but  one  was  specified,  the  court  said : 

"It  is  quite  immaterial  whether  in  the  judgment  of  the  plaintiffs  or 
others,  the  structure,  as  completed,  was  as  durable  as  the  one  con- 
tracted for  or  not.  It  was  the  right  of  the  defendant  to  consult  his 
own  judgment  and  taste  and  to  provide  for  the  construction  of  a  vault 
that  would  best  accord  therewith,  and  having  provided  by  the  specifi- 
cations of  his  contract  for  a  foundation  of  a  given  character,  and  for 
one  block  of  marble  to  fill  the  gable  of  the  vault,  he  was  entitled  to  a 
substantial  compliance  by  the  plaintiffs  with  the  terms  agreed  upon, 
before  he  could  be  called  upon  to  pay  any  part  of  the  agreed  compen- 
sation." * 

It  may  be  that  the  nails  tendered  plaintiff  in  this  case 
were  as  salable  as  if  they  had  met  the  specifications  of 
the  contract  but  we  could  not  so  find  upon  the  evidence 
above  reviewed.  Defendant's  witnesses  do  not  claim  to 
know  about  salability  and  some  of  them,  as  we  have  seen, 
frankly  admit  that  the  specifications  of  the  contract  are  not 
complied  with. 

And  if  such  is  the  showing  made  by  defendant  we  are 
left  much  more  in  doubt  as  to  its  sufficiency  as  a  basis 
for  a  finding  in  defendant's  favor  when  we  come  to  con- 
sider the  evidence  of  the  plaintiff's  witnesses.  For  they, 
including  a  salesman  of  the  United  States  Steel  Products 
Company  (p.  7),  and  another,  engaged  in  importing  nails 
among  other  commodities  (p.  9),  express  the  opinion  that 
a  variation  of  one  gauge  would  prevent  compliance  with 
these  specifications.  Under  the  rule  above  stated  that 
such  compliance  is  a  question  for  the  court,  such  evidence 
might  have  been  excluded,  had  objection  been  made;  but 


'Indiana.     Lowry  v.  Cooper,  21   Ind.,  269;   Alexander  v.  Dunn,  5 
Ind.,    122. 

Kentucky.     Mason  v.  Cowan,  1  B.  Mon.,  7. 
Ohio.     Mehurin  v.  Stone,  37  O.  St.,  49. 
'Mehurin  v.  Stone,  37  O.   St.,  57. 


752  I  EXTRATERRITORIAL  CASES. 

that  would  have  required  the  exclusion  also  of  defendant's 
evidence  of  the  same  character  which  would  practically 
have  left  it  without  any  evidence  of  compliance  whatever. 

It  may  also  be  true,  as  defendant's  counsel  contends,  that 
war  conditions  in  America  have  made  it  much  more  difficult 
to  comply  with  specifications  as  to  commodities  like  that 
involved  here.  But  it  must  be  remembered  that  these 
contracts  were  entered  into  on  March  15,  1916,  more  than 
a  year  before  America's  entry  into  the  war,  and  that  the 
contracts  themselves  provide  a  remedy  for  such  difficulties 
in  that  delivery  is  expressly  made  "subject  to  the  goods 
being  obtainable."  Under  this  provision  defendant  would 
seem  to  have  been  justified,  upon  finding,  if  it  did,  that 
nails  of  the  character  specified  could  not  be  obtained,  in 
canceling  the  contract.  But  if  it  preferred  to  waive  that 
privilege  and  to  off"er  delivery  in  spite  of  adverse  conditions, 
it  can  only  retain  the  partial  pajrment  received,  by  delivery 
according  to  contract.  The  war  conditions,  in  other  words, 
would  have  provided  it,  thru  the  clause  above  quoted,  an 
apparently  valid  defense  to  an  action  for  failure  to  deliver 
but  not  to  an  action  like  this  to  recover  money  paid  on  the 
assumption  that  delivery  would  be  made  according  to 
specification  which,  it  is  practically  admitted,  has  not  been 
done. 

The  statement  of  defendant's  co-manager  at  the  close  of 
his  testimony  as  to  an  offer  to  replace  the  cargo  does  not 
support  any  averment  of  the  answer  which  alleged,  as 
we  have  seen,  "that  the  nails  tendered  were  according  to 
the  specifications."  To  consider  that  evidence  now  when 
plaintilf  had  no  warning  of  it  in  the  pleadings,  would  violate 
felementary  rules  and  lead  to  the  determination  of  a  point 
foreign  to  the  issues. 

Believing  that  it  would  be  inequitable  as  well  as  con- 
trary to  law  for  defendant  to  retain  this  money  without 
a  stronger  showing  of  substantial  performance  than  has 
been  presented  here,  we  have  no  alternative  but  to  find 
for  the  plaintiff. 

It  is  accordingly  considered  and  adjudged  that  the 
plaintiff  have  and  recover  from  defendant  Hankow  Tls. 
14,400  and  Ts.  3,600  with  interest  thereon  at  12%  per  cent 


IN  RE  ADOPTION  OF  WU,  MAY  18,  1918.  753 

per  annum  from  April  23, 1917,  the  date  of  the  petition.  The 
rate  of  interest  is  fixed  according  to  the  Act  of  Congress 
of  March  3,  1901,^  and  runs  from  judicial  demand." 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Adoption  of  Pearl  Covert  Wu,  a  Minor. 

[Cause    No.    653;    filed   May   18,    1918.] 
SYLLABUS. 
(By  the  Court.) 

1.  ADOPTION:    CONSENT  OF  PARENTS  dispenses  with  the  need  of  ap- 

pointing a  guardian  ad  litem,  tho  the  parent  has  since  died. 

2.  Id.  :   Origin.     The  adopted  one  need  not  be  of  American  descent 

or   citizenship   prior  to   adoption. 

Dr.  H.  C.  Mei,  for  petitioners. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  was  notified 
in  advance  and  offered  no  objection  to  the  decree. 

Lobingier,  J.: 

The  petitioners  in  this  case,  who  are  husband  and  wife,  ' 
ask  for  a  decree  of  adoption  of  a  Chinese  girl  six  years 
old  who  has  been  in  their  custody  for  some  time.  It  ap- 
pears from  the  evidence  that  the  child's  father  has  been 
long  dead;  that  the  mother  died  within  the  last  year;  that 
she  was  very  poor  and  that  in  October,  1916,  she  executed 
a  document  in  Chinese,  duly  witnessed,  authorizing  the 
child's  adoption  by  Mr.  Bromley.  This  document  was  in- 
troduced in  evidence  (Ex.  A)  and,  with  a  translation,  was 
fully  proved. 

The  Acts  of  Congress  relative  to  adoption  provide  for  the 
appointment  of  a  guardian  ad  litem  in  case  the  child  is 
without  parent,  guardian  or  next  of  kin.^  But  these  clearly 
were  not  intended  for  cases  where  the  parent,  tho  since 

"  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  1178. 

"Cyc,  XXII,  1544,  1545. 

'  Act  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large,  Ch.  786, 
Tit.  Ill,  sec.  22;  Act  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  395. 
14008  o.  w. 48 


754  I  EXTRATERRITORIAL  CASES. 

deceased,  has  given  its  consent  to  adoption;  for  in  such 
a  case  the  effect  is  the  same  as  if  the  parent  were  still 
living  and  should  now  give  the  consent  required  by  the 
statute. 

Moreover  the  child  itself  expressed  in  open  court  her 
desire  to  be  adopted  by  the  petitioners  with  whom  she 
has  lived  for  more  than  two  years  and  for  whom  she  has, 
evidently,  strong  affection.  On  the  other  hand  they  are 
enga!ged  in  educational  work  and  are  especially  fitted  to 
provide  for  the  child's  nurture  and  training.  Indeed  the 
arrangement  appears  to  work  in  every  way  to  her  advan- 
tage and  to  be  most  fortunate  for  her  who  would  otherwise 
be  left  as  an  object  of  charity.  The  law  should  encourage 
and  facilitate  such  relationships  and,  as  was  said  by  the 
Supreme  Court  of  Washington,-  "in  considering  cases  of 
this  kind  we  will  make  our  first  consideration  the  welfare 
of  the  child." 

II. 

The  jurisdiction  of  this  Court  to  render  such  a  decree 
and  the  general  law  governing  the  case  have  both  been 
,  settled  in  prior  decisions.^  If  there  is  any  question  here 
it  arises  from  the  fact  that  the  child  is  not  of  American 
origin.  But  that  was  also  true  in  one  of  the  cases  above 
cited  *  where  this  Court  nevertheless  rendered  a  decree  of 
adoption.  For  the  Acts  of  Congress  under  which  the  Court 
functions  make  no  requirement  that  the  child  shall  be  of 
American  descent.  The  earlier  one  authorizes  the  adoption 
of  a  child  residing  within  the  court's  jurisdiction  while 
the  later  Act  provides  for  "adopting  any  minor  child." 
Under  such  a  statute  the  fact  that  the  adopter  and  adopted 
are  of  different  races  constitutes  no  obstacle."^  Moreover 
executive  recognition  of  the  practice  seems  to  be  extended 
by  the  Department  having  charge  of  immigration  which 
authorizes  the  admission  of  "Chinese  children  who  have 
been  regularly  adopted  by  Americans." " 

'  In  re  Potter,  85  Wash.,  617,  149  Pac,  23. 

'  In  re  Adoption  of  Alice  Alford,  ante,  p.  441.  In  re  Adoption 
of  Mary  Heal,  Cause  No.  439. 

*  In  re  Adoption  of  Mary  Heal,  Cause  No.  439. 

'In  re  Pepin's  Estate,  53  Mont.,  240,  163  Pac,  104. 

'  Opinion  of  Department  of  Commerce  and  Labor,  Oct.  14,  1907. 


IN  RE  ADOPTION  OF  WU,  MAY  18,  1918.      755 

Indeed,  the  process  of  adoption  has  been  compared "  to 
marriage  which  it  much  resembles.  And  marriage  in  an 
extraterritorial  country  like  China  is  not  subject  to  lex 
loci  as  regards  either  form  or  capacity.^  As  was  observed 
by  a  former  American  Minister  to  China,  who  was  also 
a  lawyer  of  ripe  experience, 

one  "who  may  lawfully  unite  in  marriage  two  Americans  may  also 
lawfully  unite  in  marriage  one  American  and  one  foreigner.  The 
American  is  bound  by  the  laws  of  his  country,  the  foreigner  by  his 
voluntary  submission  to  the  laws  then  and  there  complied  with,  and 
by  his  civil  contract." " 

The  analogy  to  adoption  is  obvious  here.  If  any  for- 
eigner, including  a  Chinese,  desires  to  submit  to  the  Amer- 
ican law  governing  that  subject  there  would  seem  to  be 
nothing  to  prevent  him  from  doing  so  or  an  American 
Court  from  awarding  to  competent  Americans  the  status 
of  adopting  parents  of  such  an  applicant. 

As  regards  this  Court  and  those  which  it  has  succeeded: 

"Jurisdiction  in  both  criminal  and  civil  matters  shall,  in  all  cases, 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the  United 
States,  which  are  hereby,  so  far  as  is  necessary  to  execute  such 
treaties,  respectively,  and  so  far  as  they  are  suitable  to  carry  the 
same  into  effect,  extended  over  all  citizens  of  the  United  States  in 
those  countries,  and  over  all  others  to  the  extent  that  the  terms  of 
the  treaties,  respectively,  justify  or  require."  " 

The  phrase  "over  all  others"  appears  quite  sufficiently 
broad  to  cover  a  case  like  this. 

Finally  questions  relative  to  adoption  cannot  be  worked 
out  on  the  analogy  of  the  common  law  for  it  recognized 
no  such  practice,^ ^  nor  is  it  authorized  in  England  ^-  or 

'  Corpus  Juris,  I,  1380. 

*  Moore,  International  Law  Digest,  II,  492  et  seq. 

"Minister  Denby  to  Secretary  Bayard,  Oct  19,  1888,  Id.,  497;  U.  S. 
Foreign   Relations    (1889),   75. 

'"  12  U.  S.  Stats,  at  Large,  p.  73,  sec.  4;  U.  S.  Rev.  Stats.,  sec.  4086. 

"Corpus  Juris,  I,  1371. 

"From  Bracton  to  Blackstone  there  is  no  recognition  by  the  com- 
mon law  of  such  an  artificial  augmentation  of  the  family  relation 
or  of  a  succession  by  adopted  children."  In  re  Ziegler,  143  N.  Y. 
S.,  562,  82  Misc.,  346. 

^'  Halsbury,  Laws  of  England,  III. 


756  I  EXTRATERRITORIAL  CASES. 

Canada  '^  even  yet.  In  the  United  States  the  system  has 
been  borrowed  from  the  Civil  Law,  either  directly  as  in 
the  case  of  Louisiana  ^*  and  Texas  ^'^  or  by  a  process  of 
legislation  suggested  thereby  beginning  about  the  middle 
of  the  last  century.^^  In  either  case  the  ultimate  source 
is  the  Roman  Law,  to  which  we  must  resort  for  the  solu- 
tion of  all  doubtful  questions  relating  to  adoption.  We 
have  been  unable  to  find  in  that  Law  any  obstacle  to  the 
adoption  of  an  alien. 

The  Court  being  satisfied,  in  the  language  of  the  statute, 

"1  Of  the  identity  and  relations  of  the  persons; 

2.  That  the  petitioner  is  of  sufficient  ability  and  in  all   respects 
a  proper  person  to  bring  up  the  child; 

3.  That  it  is  fit  and  proper  that  such  adoption  should  take  effect;"  " 

it  is  accordingly  considered  and  decreed  that  said  minor 
child,  heretofore  known  as  Pearl  Covert  Wu,  be  named 
and  hereafter  known  as  Pearl  Covert  Bromley,  and  shall 
be  to  all  legal  intents  and  for  all  purposes  the  child  of  the 
petitioners,  Charles  L.  and  Jane  D.  Bromley,  the  same  as 
if  born  to  them. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Chinese-American  Co.,  a  Corporation,  Plaintiff, 
v.  William  H.  Tenney,  Defendant. 

[Cause  No.  615;  filed  May  22,  1918.] 

SYLLABUS. 

(By  the  Court.) 

1.  FOREIGN  CORPORATIONS:  CONDITIONS  OF  DoiNG  BUSINESS. 
Whether  the  requirements  of  sections  228  and  231,  Ch.  786,  31 
U.  S.  Stats,  at  Large,  are  "suitable"  and  "necessary  to  execute 
the  treaties,"  quaere. 

"Corpus  Juris,  I,  1371,  1372. 

"  Fusselier   v.   Masse,   4   La.,   423. 

^'Eckford  v.   Knox,  67  Tex.,  200,  2   S.  W.,  372. 

'"Woodward's  Appeal,  81  Conn.,  152,  70  Atl.,  453;  Hockaday  v. 
Lynn,  200  Mo.,  456,  98  S.  W.,  585,  8  L.  R.  A.  (N.  S.),  117,  118  Am. 
St.  Rep.,  672. 

'■  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  Ill,  sec.  25. 


CHINESE-AMERICAN  CO.  V.  TENNEY,  MAY  22,   1918.      757 

2.  Id.  :  Who  May  Invoke.     Under  the  Federal  doctrine  it  seems  that 

such  requirements  may  be  invoked  by  the  Government  alone. 

3.  CONTRACTS:    AVOIDANCE.     Where   a  party   in   his   pleading   "elects 

to  avoid"  a  contract,  he  cannot  afterward  be  heard  to  invoke  its 
benefits. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  plaintiff. 
R.  T.  Bryan,  Jr.,  Esq.,  for  defendant. 


LOBINGIER,  J.: 

The  petition  in  this  cause  contains  the  following  aver- 
ments : 

"3rd.  That  on  or  about  the  15th  day  of  September,  1916,  the 
plaintiff  employed  the  said  defendant  and  the  said  defendant  agreed 
to  serve  the  plaintiff  as  the  sales  manager  of  the  plaintiff's  paint 
department  and  in  consideration  for  the  services  to  be  rendered  by  the 
said  defendant  as  such  sales  manager,  the  plaintiff  agreed  to  pay 
said  defendant,  and  the  defendant  agreed  to  accept,  one  half  of  the 
net  profits  realized  by  the  plaintiff  upon  the  sale  of  paints  and  painters' 
supplies. 

"4th.  That  the  said  defendant  remained  in  the  services  of  the 
plaintiff  as  aforesaid  until  on  or  about  the  6th  day  of  February, 
1917,  when  the  employment  of  the  said  defendant  as  aforesaid  was 
terminated  at  the  request  of  the  plaintiff. 

"5th.  That  on  the  6th  day  of  February,  1917,  when  said  employ- 
ment ceased  as  aforesaid  the  said  defendant  was  indebted  to  the 
plaintiff  in  the  sum  of  Tls.  2,964.88,  Shanghai  Sycee,  on  account  of 
moneys  drawn  by  said  defendant  for  his  own  uses  and  purposes  from 
the  funds  of  said  paint  department  of  said  business  over  and  above 
his  one  half  share  of  the  net  profits  thereof. 

"6th.  That  on  the  30th  day  of  April,  1917,  the  said  defendant 
paid  on  account  of  his  said  overdraft  the  sum  of  Tls.  774.36,  Shanghai 
Sycee,  leaving  a  balance  of  Tls.  2,190.52,  Shanghai  Sycee,  still  due 
plaintiff." 

Judgment  for  the  said  amount  with  interest  and  costs 
is  prayed. 

The  answer  admits  the  first  two  paragraphs  above 
quoted,  and  continues  as  follows: 

"(5)  That  the  defendant  admits  that  when  said  employment  ter- 
minated on  the  6th  February,  1917,  he  was  indebted  to  the  plaintiff 
in  the  sum  of  Tls.  2,613.14,  but  he  denies  that  he  owes  any  amount  in 
excess  of  that. 

"(6)  That  the  defendant  admits  that  he  paid  to  the  plaintiff  the 
sum  of  Tls.  774.36,  leaving  a  balance  due  of  Tls.  1,838.78,  but  denies 
that  he  is  indebted  to  the  plaintiff  in  any  further  amount." 


758  1  EXTRATERRITORIAL  CASES. 

The  answer  then  sets  up  a  counter-claim  for  commissions 
alleged  to  have  been  earned  amounting  to  $275.40  and  for 
damages  for  terminating  the  contract  between  plaintiff 
and  defendant.  This  item  was  later  withdrawn.  The 
answer  also  contains  the  following  averment: 

"(8)  That  the  plaintiff  has  not  filed  in  the  office  of  the  clerk  of 
the  district  court,  i.  e.,  the  United  States  Court  in  China,  an  authen- 
ticated copy  of  its  charter  or  articles  of  incorporation  or  a  statement 
verified  by  the  oath  of  its  president  and  secretary  and  attested  by 
the  majority  of  its  directors  showing:  (1)  Its  name  and  the  location 
of  its  principal  office  or  place  of  business  without  the  district; 
and  if  it  has  any  place  of  business  or  principal  office  within  the 
district,  the  location  thereof;  (2)  The  amount  of  its  capital  stock; 
(3)  The  amount  of  its  capital  stock  actually  paid  in  in  money;  (4) 
The  amount  of  its  capital  stock  paid  in  in  any  other  way  and  in 
what;  (5)  The  amount  of  its  assets  and  of  what  the  assets  consist, 
with  the  actual  cash  value  thereof;  (6)  Its  liabilities  and  if  any  of 
its  indebtedness  is  secured,  how  secured,  and  upon  what  property, 
nor  has  it  filed  in  the  office  of  the  clerk  of  the  district  court,  i.  e., 
the  United  States  Court  for  China,  a  certificate  under  its  seal  and 
the  signature  of  its  president  or  other  acting  head  certifying  that  it 
has  consented  to  be  sued  in  the  courts  of  the  district  upon  all  causes 
of  action  arising  against  it  in  the  district  and  that  service  of  process 
may  be  made  upon  some  person  a  resident  of  the  district,  whose  name 
and  place  of  residence  is  therein  designated,  according  to  Section 
six  hundred  and  fifty-four  (sec.  654)  of  the  Alaska  Code;  nor  has 
the  plaintiff  filed  the  written  consent  of  such  person  designated  to 
act  as  agent  according  to  Section  six  bunded  and  fifty-five  (sec.  655) 
of  the  Alaska  Code;  nor  has  the  plaintiff  filed  any  report  or  reports 
with  the  clerk  of  the  district  court,  i.  e.,  the  United  States  Court  for 
China,  as  required  by  Section  six  hundred  and  fifty-eight  (sec.  658) 
of  the  Alaska  Code;  and  the  defendant  expressly  pleads  as  a  defence 
to  the  action  of  the  plaintiff  that  the  penalties  laid  down  in  Sections 
six  hundred  and  fifty-seven  and  six  hundred  and  sixty  (sees.  657 
&  660)  of  the  Alaska  Code  be  enforced  as  he  elects  to  avoid  the 
contract  set  forth  in  the  petition  of  the  plaintiff  which  he  is 
permitted  to  do  by  said  sections  of  the  Alaska  Code." 

The  reply  is  in  the  main  a  general  denial. 

It  will  be  seen  that  defendant  "elects  to  avoid  the  con- 
tract set  forth  in  the  petition."  Now  the  only  contract  so 
set  forth  is  the  contract  of  employment  which,  it  is  alleged, 
terminated  "on  or  about  the  6th  day  of  February,  1917." 
Plaintiff,  however,  is  not  seeking  to  enforce  that  contract 
nor  any  contract  relating  thereto.  It  merely  asks  the  re- 
turn of  certain  moneys  alleged,  and  mostly  admitted,  to 


CHINESE-AMERICAN  CO.  V.  TENNEY,  MAY  22,  1918.      759 

have  been  received  by  defendant  in  addition  to  and  in- 
dependently of  the  compensation  allowed  him  by  virtue  of 
said  contract.  Such  recovery  plaintiff  would  be  entitled 
to  even  had  there  been  no  contractual  relations  between  the 
parties  whatever  for  it  merely  involves  the  return  of 
moneys  wrongfully  received  by  a  party  to  his  own  use. 

The  question  of  what  law  would  apply  in  case  plaintiff 
were  actually  seeking  to"  enforce  its  contract  is,  therefore, 
superfluous.  But  it  may  be  observed  that  counsel,  in  spite 
of  a  carefully  prepared  argument,  seems  to  have  overlooked 
the  doctrine  adopted  by  the  Supreme  Court  in  such  a  case 
and,  therefore,  binding  upon  us  regardless  of  what  the  State 
courts  may  hold.     Congress  long  ago  enacted,  e.  g. : 

"That  no  act  of  the  Territorial  legislature  of  any  of  the  Territories 
of  the  United  States,  incorporating  any  bank  or  any  institution  with 
banking  powers  or  privileges,  hereafter  to  be  passed,  shall  have  any 
force  or  effect  whatever,  until  approved  and  confirmed  by  Congress."  ^ 

More  than  twenty  years  later  the  territorial  legislature 
of  Nebraska  chartered  a  bank  with  power  "to  buy  and 
possess  property  of  every  kind."  The  charter,  however, 
was  never  approved  nor  confirmed  by  Congress  and  a 
conveyance  of  real  estate  to  the  bank  was  assailed  on  that 
ground ;  but  the  Supreme  Court  said : 

"It  is  insisted,  however,  as  an  additional  ground  of  objection  to 
this  deed,  that  the  bank  was  not  a  competent  grantee  to  receive 
title.  It  is  not  denied  that  the  bank  was  duly  organized  in  pursuance 
of  the  provisions  of  an  act  of  the  legislature  of  the  Territory  of  Ne- 
braska, but,  it  is  said  it  had  no  right  to  transact  business  until  the 
charter  creating  it  was  approved  by  Congress.  This  is  so,  and  it  could 
not  legally  exercise  its  powers  until  this  approval  was  obtained,  but 
this  defect  in  its  constitution  cannot  be  taken  advantage  of  collater- 
ally. No  proposition  is  more  thoroughly  settled  than  this,  and  it  is 
unnecessary  to  refer  to  authorities  to  support  it.  Conceding  the 
bank  to  be  guilty  of  usurpation,  it  was  still  a  body  corporate  de  facto, 
exercising  at  least  one  of  the  franchises  which  the  legislature  at- 
tempted to  confer  upon  it,  and  in  such  a  case  the  party  who  makes 
a  sale  of  real  estate  to  it,  is  not  in  a  position  to  question  its  capacity 
to  take  the  title,  after  it  has  paid  the  consideration  for  the  purchase." ' 

^  Act  of  Congress  of  July  1,  1836,  5  U.  S.  Stats,  at  Large,  61  Ch. 
231,  sec.    1. 

=  Smith  V.  Sheeley,  12  Wall.  (U.  S.),  358,  361,  20  L.  ed.,  430. 


760  I  EXTRATERRITORIAL  CASES. 

The  same  doctrine  has  been  laid  down  in  other  cases 
before  and  since, ■■  and  while  some  of  those  cited  by  defend- 
ant's counsel  announce  a  different  rule  ^  we  are  not  author- 
ized to  follow  them. 

We  need  not,  therefore,  determine  in  this  proceeding 
whether  that  section  of  the  Act  of  Congress  ^  invoked  by 
defendant's  counsel  (which  merely  declares  contracts  in 
a  case  like  this  "voidable  at  the  election  of  the  other 
party")  is  here  "suitable"  and  "necessary  to  enforce  the 
treaties"  as  it  must  be  in  order  to  apply  in  this  jurisdiction.'' 
For  defendant  does  not  elect  to  avoid  any  contract  which 
plaintiff  seeks  to  enforce  and  it  seems  probable,  under  the 
doctrine  above  noticed,  that  the  question  in  any  case  could 
be  raised  by  the  Government  alone. 

11. 

Defendant  claims  credit  for  an  item  of  Tls.  165.65  being 
half  of  a  loss  incurred  on  a  paint  contract  entered  into  by 
him  which  loss  he  says  was  caused  by  the  contractor's  in- 
correct estimate.  Counsel  contends  that  plaintiff  should 
share  this  loss  on  the  ground  that  the  contract  between 
the  two  parties  constituted  a  partnership.^  But  whatever 
would  be  the  case  otherwise  it  must  be  remembered  that  the 
petition   alleges,   and  the   answer  expressly  admits,  that 

^Federal  Runyan  v.  Coster's  Lessee,  14  Pet.,  122,  10  L.  ed.,  382; 
Harris  v.  Runnels,  12  Howard,  79,  13  L.  ed.,  901;  National  Bank  v. 
Matthews,  98  U.  S.,  621,  628,  25  L.  ed.,  188;  National  Bank  v.  Whitney, 
103  U.  S.,  99,  26  L.  ed.,  433. 

Alabama.  Sherwood  v.  Alvis,  83  Ala.,  115,  3  So.,  307,  3  Am.  St. 
Rep.,  695. 

Maryland.     Lord   v.    Robinson,   37    Md.,    320. 

Missouri.     Mclndoe  v.   St.   Louis,   10   Mo.,   575. 

Pennsylvania.  Goundie  v.  Northampton  Water  Co.,  7  Pa.  St.,  233; 
Cochran  v.  Arnold,  58  Pa.   St.   399. 

*  Osborne  v.  Shilling,  74  Kan.  675,  88  Pac,  258,  11  Ann.  Cas.,  319. 

In  Burr  v.  House,  3  Alaska,  641,  the  observations  of  the  court  on 
this  point  are  dicta  since  it  was  held  that  non-compliance  had  not 
been  sufficiently  pleaded  nor  proven. 

°  31  U.  S.  Stats,  at  Large,  Ch.  786,  Tit.  Ill,  sec.  228. 

"U.   S.  Rev.  Stats.,  sec.  4086. 

'  Citing  Miller  v.  Simpson,  107  Va.,  476,  59  S.  E.,  378,  18  L.  R.  A. 
(N.  S.),  962,  where  the  subject  is  fully  annotated. 


CHINESE-AMERICAN  CO.  V.  TENNEY,  MAY  22,  1918.      761 

the  contract  was  one  of  employment  which  would  neg- 
ative the  partnership  theory.  Morever,  that  is  pre- 
cisely the  contract  which  defendant  in  his  answer  "elects 
to  avoid"  and  having  so  elected  he  could  not  be  heard  to 
invoke  its  benefits. 

Defendant  also  claims  credit  for  an  item  of  Tls. 
186.09  v/hich  it  is  agreed  by  all  was  collected  from  plain- 
tiff's customers  by  defendant's  Chinese  employee,  who  was 
in  no  way  connected  with  the  plaintiff  and  who  receipted 
for  such  collections.  Plaintiff's  general  manager  testifies 
that  the  collector  stated  in  defendant's  presence  that  he  had 
collected  and  retained  this  money  at  defendant's  instance 
to  satisfy  a  debt  due  him  from  defendant.  .  Referring  to 
this  testimony  defendant  says  in  reply  to  the 

"Q.  Did  you  ever  say  in  the  presence  of  Mr.  Ramsey  or  Mr. 
Robinson  and  Mr.  Chi  Hai  Sze  also  being  present  that  he  could 
collect  this   money? 

"A.  I  did  not." 

It  will  be  seen  that  this  is  not  a  denial  of  what  the 
collector  is  testified  to  have  said  and  that  statement  is 
consequently  undisputed.  Defendant's  counsel  admits  that 
the  question  as  to  this  item  is  purely  one  of  fact  and  we 
do  not  find  that  defendant  has  overcome  the  showing  made 
by  plaintiff. 

As  to  the  claim  for  commissions  it  appears  that  after 
defendant's  contract  with  plaintiff  had  terminated  he 
brought  in  a  customer  who,  according  to  his  own  testimony, 
purchased  five  thousand  yards  of  serge  at  $4.50  per  yard. 
Defendant  testifies  that  the  same  customer  subsequently 
purchased  $6,200  worth  of  serge  upon  which,  as  upon  the 
first  sale,  defendant  claims  a  commission  of  twenty  cents 
per  yard  or  $275.40  making  his  total  commissions  $1,275.40. 
But  defendant  also  testifies  that  he  has  been  credited  with 
$1,620  for  such  commissions  which  is  considerably  more 
than  his  highest  claim. 

It  is  accordingly  considered  and  adjudged  that  defendant 
take  nothing  by  his  counter-claim  and  that  plaintiff  have 
and  recover  from  defendant  the  amount  claimed  in  its  pe- 
tition, to  wit:  Tls.  2,190.52  with  interest  thereon  at  6% 
per  annum  from  November  2,  1917,  together  with  its  costs. 


762  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

John  Layton  Company   (a  Corporation),  Complainant, 
V.  Carl  Blomberg,  Respondent. 

[Cause  No.  657;   filed  June  6,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRACTS:   RESTRAINT  OF  TRADE,     The  Common  Law  repugnance 

to  contracts  in  restraint  of  trade  has  been  much  modified. 

2.  Id.     The  modern  doctrine  upholds  a  contract  not  to  engage  in  a 

certain  line  of  business  within  an  extensive,  and  even  unlimited, 
area  for  a  limited  time. 

3.  Id.  :    Divisibility.     Even  where  the  contract  contains  restrictions 

which  might  render  it  void,  still,  if  divisible,  the  valid  portion 
may  be  enforced. 

4.  Id.  :    Remedy.     Such    enforcement    is    effected    by    enjoining    the 

threatened  breach  as  a  method  of  negative  specific  performance. 

Messrs.  Jernigan,  Fessenden  &  Rose,  by  Mr.  Rose,  and 
Geoffrey  H.  Wright,  Esq.,  for  the  complainant. 
No  appearance  for  respondent. 

Lobingier,  J.: 

This  is  a  bill  in  equity,  duly  sworn  to  and  containing 
the  following  averments: 

"1.  That  the  plaintiff  is  a  corporation  organized  under  the  laws  of 
the  State  of  New  York  and  having  an  agent  and  carrying  on  busi- 
ness in  China  and  within  the  jurisdiction  of  this  Court; 

"2.  That  the  defendant  is  an  American  citizen  residing  in  Han- 
kow, China,  and  within  the  jurisdiction  of  this   Court; 

"3.  That  the  plaintiff  is  engaged  in  the  manufacture  of  evaporated, 
dried,  dessicated  and  frozen  eggs  and  the  defendant  was  and  is 
thoroughly  familiar  with  the  processes  for  the  manufacture  of  evap- 
orated, dried,  dessicated  and  frozen  eggs; 

"4.  That  on  or  about  ninth  day  of  June,  1915,  the  plaintiff,  con- 
templating the  erection  of  a  plant  at  Hankow,  China,  for  the  pur- 
pose of  preparing  and  dealing  in  and  with  dried  eggs,  made  and 
entered  into  a  contract  with  the  said  defendant  which  said  contract 
provided  as  follows: 

'Whereas  said  Blomberg  represents  that  he  is  thoroughly  familiar 
with  the  processes  for  the  manufacture  of  evaporated,  dried,  des- 
sicated and  frozen  eggs  and  has  had  many  years  experience  in  the 
industry; 

'Whereas  the  Employer  contemplates  the  erection  of  a  plant  at 
Hankow,   China,  for  the  purpose   of   preparing   and   dealing   in   and 


JOHN  LAYTON  CO.  V.  BLOMBERG,  JUNE  6,  1918.         763 

with  dried  eggs  and  has  entered  into  an  agreement  with  A.  D.  Rob- 
inson by  which  said  Robinson  is  to  erect  or  cause  to  be  erected  such 
plant; 

'Whereas  the  Employer  desires  to  obtain  the  services  of  said 
Blomberg; 

'Now,  therefore,  the  parties  hereto  agree  as  follows: 

'Said  Blomberg  has  agreed  and  hereby  does  agree  to  enter  the 
employ  of  said  Employer  and  the  Employer  does  hereby  agree  to 
employ  said  Blomberg  for  a  period  of  three  years  from  the  first  day 
of  October,  1915,  to  the  first  day  of  October,  1918,  at  a  salary  of 
$200  per  month,  payable  on  the  last  day  of  each  and  every  month 
during  the  continuance  of  this  contract,  upon  the  following  terms 
and  conditions: 

'Said  Blomberg  does  hereby  agree  that  he  will  sail  from  the  United 
States  for  China  not  later  than  October  1st,  1915,  and  that  he  will 
go  straightway  to  Hankow,  China,  and  will  there  remain  in  the 
employ  of  said  Employer  upon  the  terms  hereof  during  the  term 
of  this  contract. 

'Said  Blomberg  agrees  to  devote  his  entire  time,  attention  and 
energies  to  the  best  interests  of  said  Employer  and  the  International 
Export  Company  in  its  business  in  China  of  manufacturing  and  deal- 
ing in  and  with  frozen,  dried,  dessicated  and  evaporated  eggs  and 
in  matters  pertaining  to  the  erection  and  construction  of  the  aforesaid 
contemplated  plant  in  Hankow,  China,  and  agrees  that  he  will  assist 
in  properly  instructing  said  John  Layton  company's  employees  and  the 
employees  of  the  International  Export  Company  in  the  manufacture 
of  dried,  dessicated,  frozen  and  evaporated  eggs,  and  will  diligently 
and  conscientiously  perform  any  other  services  which  may  be  re- 
quired of  him  by  said  Employer  and  those  appointed  over  him,  and 
will  obey  the  orders  from  time  to  time  of  said  Employer  and  those 
appointed  over  him  during  the  term  of  his  employment. 

'Said  Blomberg  further  agrees  that  he  will  in  all  respects  conform 
to  and  comply  with  the  directions  and  regulations  which  may  be 
given  and  made  by  the  Employer  and  shall  well  and  faithfully  serve 
the  Employer  and  use  his  utmost  endeavors  to  promote  the  interests 
of  the  Employer  and  shall  not  at  any  time  during  the  whole  period 
of  this  contract  or  subsequently  thereto  divulge  any  secret  or  deal- 
ing or  communicate  to  any  person  or  persons  any  information  which 
he  may  receive  or  obtain  relating  to  the  business  of  the  Employer  or 
said  International  Export  Company,  but  shall  at  all  times  inform 
the  Employer  of  all  discoveries  which  he  may  make  or  information 
which  he  may  receive  in  any  way  likely  to  affect  the  Employer's 
interest. 

'It  is  the  understanding  of  the  parties  hereto  that  the  duties  of 
said  Blomberg  may  require  services  either  by  night  or  day,  and  that 
his  agreement  herein  is  to  perform  such  services  at  all  times  as  the 
best  interests  of   said   Employer  may   dictate. 

'Said  Blomberg  agrees  that  during  the  term  of  this  contract  he 
shall  perform  all  services  in  a  thorough,  competent  and  efficient  man- 


764  I  EXTRATERRITORIAL  CASES. 

ner,  and  that  during  the  term  of  employment  he  will  be  faithful  to 
the  best  interests  of  said  Employer. 

'Said  Blomberg  further  agrees  that  he  will  not  at  any  time  during 
the  continuance  of  his  employment  be  engaged  directly  or  indirectly 
in  any  business  or  occupation  whatever  other  than  the  business  of  the 
Employer  or  of  said   International   Export  Company. 

'Said  Blomberg  further  agrees  that  he  will  at  no  time  without  the 
written  consent  of  said  Employer  either  in  his  own  behalf  or  in  be- 
half of  any  person  or  company  other  than  said  Employer  or  said 
International  Export  Company,  enter  into  any  business  in  China 
in  any  way  connected  with  or  pertaining  to  eggs  or  poultry  or  any 
kind  of  business  transacted  by  or  in  behalf  of  the  International  Ex- 
port Company  and  that  he  will  not  give  out  any  information  to  any 
one  other  than  the  Employer  and  said  International  Export  Company 
or  the  duly  credited  representatives  of  them  or  either  of  them  in 
respect  of  any  branch  of  the  egg  or  poultry  business  in  China  or 
any  other  kinds  of  business  transacted  by  the  Employer  or  the  In- 
ternational Export  Company. 

'If  the  employee  shall  at  any  time  wilfully  neglect  or  refuse  or 
in  any  way  prove  himself  dishonest  or  untrustworthy  or  from  any 
other  cause  shall  not  satisfactorily  cany  out  his  duties,  of  which 
breach,  incompetency,  unsatisfactory  conduct,  insubordination  or  dis- 
obedience tlvB  Employer  shall  be  the  sole  judge  and  whose  decision 
shall  be  binding  and  conclusive,  the  Employer  shall  be  at  liberty  to 
dismiss  him  and  terminate  this  contract  and  pay  to  said  employee 
the  portion  of  salary  due  to  him  for  the  time  actually  served  up  to 
the  date  of  his  dismissal.' 

"5.  That  after  the  execution  of  said  contract  and  according  to  the 
provisions  thereof  the  said  defendant  entered  into  the  employ  of  the 
plaintiff  and  left  the  United  States  and  came  to  Hankow,  China; 
that  the  defendant  there  remained  in  the  employ  of  the  plaintiff  until 
about  the  20th  day  of  October,  1916,  when  the  plaintiff  dismissed  the 
said  defendant  from  its  employ  with  just  and  sufficient  cause  as  the 
plaintiff  had  the  right  to  do  under  the  terms  of  said  contract;  that 
the  plaintiff  provided  the  defendant  with  transportation  from  Han- 
kow to  the  United  States,  and  the  said  defendant  left  Hankow  and 
returned  to  the  United  States; 

"6.  That  thereafter,  to  wit,  during  the  month  of  February,  1918, 
defendant  returned  to  Hankow,  China,  and  entered  into  the  employ 
of  a  certain  firm,  to  wit,  A.  Grosjean  &  Co.,  without  the  written 
consent  of  the  plaintiff;  that  the  said  Grosjean  &  Company  are 
business  rivals  of  the  plaintiff  company  and  the  International  Ex- 
port Company,  and  are  engaged  in  business  in  China  connected  with 
and  pertaining  to  eggs  or  poultry  and  other  lines  of  business  which 
are  transacted  by  or  on  behalf  of  the  plaintiff  and  the  International 
Export  Company; 

"That  the  defendant  is  now  and  has  been  for  some  time  past 
superintending,  or  assisting  in  the  superintendence  of,  the  erection 


JOHN  LAYTON  CO.  V.  BLOMBERG,  JUNE  6,  1918.         765 

of  a  plant  at  Hankow  similar  to  the  plant  of  the  plaintiff  and  the 
International  Export  Company  located  in   Hankow; 

"That  such  action  on  the  part  of  the  defendant  in  returning  to 
China  and  engaging  in  the  employ  of  the  said  A.  Grosjean  &  Com- 
pany as  above  set  forth  was  contrary  to  the  provisions  of  the  contract 
made  and  entered  into  by  and  between  the  plaintiff  and  defendant 
herein  on  the  9th  day  of  June,  1915,  which  are  above  set  forth;  and 
by  so  doing  the  defendant  caused  and  is  causing  great  and  irrepa- 
rable damage  to  the  plaintiff." 

The  prayer  is  for  an  order  restraining  the  respondent 
from  infringing  the  agreement  above  recited,  and  for  dam- 
ages. 

11. 

In  addition  to  the  general  equity  powers  conferred  upon 
this  Court  ^  the  legislation  of  Congress  expressly  authorizes 
the  granting  of  an  injunction 

"When  it  appears  by  the  complaint  that  the  plaintiff  is  entitled  to 
the  relief  demanded,  and  such  relief,  or  any  part  thereof,  consists 
in  restraining  the  commission  or  continuance  of  some  act  the  com- 
mission or  continuance  of  which. during  the  litigation  would  produce 
injury  to  the  plaintiff;  or  when  it  appears  by  affidavit  that  the  de- 
fendant is  doing,  or  threatens  or  is  about  to  do,  or  is  procuring  or 
suffering  to  be  done,  some  act  in  violation  of  the  plaintiff's  rights 
concerning  the  subject  of  the  action,  and  tending  to  render  the  judg- 
ment ineffectual." ' 

We  are  not,  therefore,  required  to  look  beyond  the  aver- 
ments of  this  verified  bill  in  order  to  determine  whether 
the  relief  sought  may  be  granted.  Nor  is  it  necessary 
that  notice  be  given  the  respondent  altho  in  this  case  such 
notice  was  given.  The  law  requires,  however,  an  under- 
taking on  the  part  of  the  complainant 

"that  he  will  pay  all  costs  and  disbursements  that  may  be  decreed 
to  the  defendant,  and  such  damages  not  exceeding  an  amount  therein 
specified,  as  he  may  sustain  by  reason  of  the  injunction  if  the  same 
be  wrongful  or  without  sufficient  cause."  ^ 

The  law  considers  this  undertaking  sufficient  to  protect 
the  respondent  and  as  dispensing  with  the  necessity  of 
notice. 


'  U.  S.  Rev.  Stats.,  sec.  4086. 

'  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  Tit.  II,  sec.  386. 
'Id.,  sec.  384. 


766  1  EXTRATERRITORIAL  CASES. 

In  examining  the  bill  the  first  question  which  arises  is 
whether  the  agreement  therein  set  forth  is  valid  and  en- 
forcible.  Contracts  in  restraint  of  trade  were  not  favored 
by  the  Common  Law/  but  the  steady  trend  of  decisions 
has  been  away  from  this  doctrine  and  in  the  direction  of 
allowing  parties  a  greater  latitude  in  making  such  contracts. 
It  is  no  longer  the  rule  either  in  England  or  America  that 
a  contract  by  which  one  party  agrees  not  to  engage  in  a 
certain  business  for  a  limited  time  within  even  an  extensive 
area  is  void.  Such  a  contract  has  been  upheld  as  to  the 
whole  of  England,^  of  Great  Britain,*'  of  the  United  King- 
dom," together  with  other  countries,^  of  an  entire  state,"  or 
territory,^"  or  group  of  states,^^  including  all  but  two,'-  as 
to  the  whole  of  the  United  States,^''  and  even  where  there 


'Mitchel  V.  Reynolds,  1   P.   Wms.,  181    (1711). 

"The  inhibition  against  restraints  of  trade  at  common  law  seems 
at  first  to  have  had  no  exception.  See  language  of  Justice  Hull, 
Year  Book,  2  Hen.  V.,  folio  5,  pi.  26."  Taft,  J.,  in  U.  S.  v.  Addyston 
Pipe  &  Steel  Co.,  85  Fed.,  271,  280. 

'Jones  V.  Lees,  1  H.  &  N.,   189. 

"Whittaker  v.   Howe,  3   Beav.,  383. 

"  Tallis  V.  Tallis,  E.  &  B.,  391,  22  L.  J.,  185. 

'Underwood  v.  Barker,  1  Ch.  Div.   (1898-9),  300. 

^Federal.  Oregon  Steam  Navigation  Co.  v.  Winsor,  20  Wall. 
(U.  S.),  64,  22  L.  ed.,  315. 

Ohio.  Paragon  Oil  Co.  v.  Hall,  7  O.  C.  C,  240,  where,  however, 
the   City   of  Cleveland  was  excepted. 

Rhode  Island.  Herreshoff  v.  Boutineau,  17  R.  I.,  3,  19  Atl.,  712,.  8 
L.  R.  A.,  469,  33  Am.  St.  Rep.,  850. 

"Godfrey  v.  Roessle,  5  Appeal   Cases    (D.   C),  299. 

''Federal.  Davis  v.  A.  Booth  &  Co.,  131  Fed.,  31;  Fisheries  Co. 
V.  Lennen,  116  Fed.,  217;  Harrison  v.  Glucose  Sugar  Refining  Co., 
116  Fed.,  304. 

Iowa.  Swigert  v.  Tilden,  121  Iowa,  650,  97  N.  W.,  82,  63  L.  R.  A., 
608. 

'"  New  Jersey.  Trenton  Potteries  Co.  v.  Oliphant,  58  N.  J.  Eq., 
507,  43  Atl.,  723,  46  L.  R.  A.,  255,  78  Am.  St.  Rep.,  612. 

New  York.  Diamond  Match  Co.  v.  Roeber,  106  N.  Y.,  473,  31  N. 
E.,  419,  60  Am.  Rep.,  464. 

"  Federal.  National  Enameling  etc.  Co.  v.  Haberman,  120  Fed., 
415. 

Massachusetts.  Anchor  Electric  Co.  v.  Hawkes,  171  Mass.,  101,  105 
N.  E.,  509,  41  L.  R.  A.,  189,  46  Am.  St.  Rep.,  408. 


JOHN  LAYTON  CO.  V.  BLOMBERG,  JUNE  6,  1918.         767 

was  no  limit  as  to  locality.^*     The  modern  doctrine  has  been 
well  stated  as  follows: 

"In  the  strife  for  commercial  supremacy  which  the  nations  of 
the  world  have  now  entered  upon  it  would  seem  suicidal  for  this  gov- 
ernment, thru  its  judiciary,  to  lag  one  whit  behind  the  marching 
squadrons.  In  business  transactions  undeviating  honesty  is  a  prime 
factor.  If  that  factor  is  eliminated,  or  even  suspected,  the  handicap 
upon  enterprise,  advancement,  and  material  progress  will  be  serious, 
if  not  intolerable.  The  parties  made  the  contract  in  suit  with  pains- 
taking care.  Why  should  the  defendant  not  occupy  the  position 
into  which  he  cramped  himself  by  his  own  act?  The  answer,  most 
vociferously  enunciated,  is  that  the  public  will  be  the  loser  thereby. 
Many  ways  in  which  it  cannot  lose  have  been  adverted  to.  If  there 
is  danger  at  all,  is  it  not  much  less  dangerous  to  lay  down  the  hard 
and  fast  rule  that  freedom  of  contract  will  always  be  sustained,  pro- 
vided such  freedom  is  reasonably  exercised?  Freedom  without  that 
exception  degenerates  into  license.  In  any  event,  would  the  antic- 
ipated harm  be  at  all  comparable  to  the  enormous  advantages  which 
must  accrue  when  it  shall  have  become  for  all  time  the  settled  law 
that  every  man  must  abide  by  his  bargain  honestly  made,  when  no 
lingering  smirch  of  guilty  design  or  harmful  purpose  clings  thereto? 
It  should  not  be  so  that  a  bargain  which,  upon  every  principle  of 
justice,  equity,  and  decency  ought  to  be  rigidly  enforced,  shall  in 
any  case  be  rejected  because  of  some  lingering  respect  for  tradition."  " 

Under  this  doctrine,  to  which  the  Federal  courts  es- 
pecially adhere,  the  bill  before  us  appears  to  state  a  prima 
facie  case  for  preliminary  relief.  It  seems  clear,  however, 
that  the  contract  relates  primarily  to  Hankow  for  it  is  there 
that  respondent  is  required  to  remain  during  the  term 
thereof.  Moreover,  the  breach  complained  of  is  alleged  to 
occur  at  Hankow  and  not  elsewhere  and  it  would  appear  to 
be  sufficiently  remedied  if  respondent  were  prevented  from 
continuing  in  other  employment  at  Hankow,  tho  the  order 

"  England.  Rousillon  v.  Rousillon,  14  Ch.  D.,  351 ;  Nordenfelt  v. 
Maxim  etc.  Co.,  Ltd.,  A.  C.  (1894),  535. 

Netv  Hampshire.  Bancroft  v.  Union  Embossing  Co.,  72  N.  H., 
402,  57  Atl.,  97,  64  L.  R.  A.,  298. 

Ne%v  York.  Tode  v.  Gross,  127  N.  Y.,  480,  28  N.  E.,  469,  13  L.  R. 
A.,  652,  24  Am.  St.  Rep.,  475. 

Rhode  Island.  Oakdale  Mfg.  Co.  v.  Garst,  18  R.  I.,  484,  28  Atl., 
973,  23  L.  R.  A.,  639,  49  Am.  St.  Rep.,  784. 

'°  Plartit,  J.,  in  National  Enameling  etc.  Co.  v.  Haberman,  120  Fed., 
415,  421. 


768  I  EXTRATERRITORIAL  CASES. 

may  be  extended  if  conditions  require.  And  where  such 
is  the  case  and  the  contract  is  divisible  it  may  be  enforced 
locally  even  tho  the  provisions  as  to  a  larger  area  are  not 
upheld.'" 

The  remedy  sought  is  a  proper  one  in  such  a  case  as 
practically  all  of  the  foregoing  authorities  disclose.  Dam- 
ages v^ould  be  inadequate  and  prevention  is  merely  a 
negative  method  of  specific  performance.^" 

It  is  therefore  considered  and  decreed  that  upon  com- 
plainant's executing  an  undertaking  as  required  by  lav^^ 
in  the  sum  of  Tls.  25,000,  a  temporary  injunction  shall 
issue  and  remain  in  force  until  a  hearing  can  take  place, 
restraining  the  respondent  from  continuing  in  the  employ 
of  any  one  in  Hankow  other  than  complainant  and  the 
International  Export  Company  whose  business  is  in  any 
way  connected  with  eggs  or  poultry  or  that  conducted  by 
complainant  and  said  International  Export  Company  and 
from  giving  out  any  information  concerning  said  business. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

S.  Heiman  &  Co.,  Plaintiff,  v.  The  Barkley 
Company,  Inc.,  Defendant. 

[Cause  No.  643;  filed  June  13,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  SALES:    Place  of  Shipment  in  a  contract  of  sale  is,  under  the 

Federal  doctrine,  a  material  requirement  whose  non-observance 
entitles  the  vendee  to  rescind. 

2.  Id.  :  Advance  Payment  on  such  a  contract  may  be  recovered  back 

where   it   appears   that   the   subject   matter   was   shipped   from 
another  than  the  required  point  of  departure. 

Messrs.  Jeimigan,  Fessenden  &  Rose,  by  Mr.  Rose,  for 
plaintiff. 

Messrs.  Fleming  &  Davies,  by  Mr.  Davies,  for  defendant. 

"Oregon  Steam  Navigation  Co.  v.  Winsor,  20  Wall.    (U.  S.),  64, 
22   L.   ed.,   315. 

"  Lumley  v.  Wagner,  1  De  G.  McN.  &  G.,  604. 


S.  HEIMAN  &  CO.  V.  BARKLEY  CO.,  JUNE  13,  1918.       769 
LOBINGIER,  J.: 

This  is  an  action  to  recover  back  an  advance  payment 
of  Tls.  4,000  (20%  of  the  purchase  price)  on  a  contract 
for  the  purchase  by  plaintiff  from  defendant  of  hematine 
crystals.  The  contract,  executed  November  5,  1917,  is 
evidenced  by  an  instrument  (Ex.  "A")  mainly  a  printed 
form  but  with  certain  typewritten  provisions  inserted, 
among  which  is  the  following:  "Shipment  during  Novem- 
ber from  Pacific  Coast,"  It  is  conceded  that  the  goods 
in  question  were  not  shipped  "during  November"  nor  "from 
Pacific  Coast"  but  were  shipped  from  New  York.  The 
invoice  bears  date  February  2,  1918,  and  the  undisputed 
testimony  is  that  plaintiff  was  advised  on  May  11  of  the 
arrival  of  the  shipment  in  Shanghai  whereupon  it  refused 
to  accept  delivery  and  demanded  back  its  advance  payment. 

The  evidence  and  argument  largely  concern  the  question 
of  delay,  whether  it  was  necessitated  by  war  conditions  or 
excused  under  certain  printed  clauses  in  the  contract.  We 
have  not,  however,  found  it  necessary  to  resolve  these 
questions  because  there  is  one  requirement  of  the  contract 
which  is  not  qualified  by  any  printed  clause  to  which  our 
attention  is  directed  and  which,  under  the  doctrine  pre- 
vailing in  this  jurisdiction,  must  be  treated  as  material 
and  imperative.  This  is  the  clause  requiring  "Shipment 
*  *  *  from  Pacific  Coast."  In  a  very  similar  case  ^ 
where  the  vendor  had  shipped  from  Leith  instead  of  Glas- 
gow, as  the  contract  required,  the  Supreme  Court  reversed 
a  judgment  in  favor  of  the  vendor  and  held  the  vendee 
absolved,  saying: 

"The  thing  sold,  and  described  in  the  contract,  is  '500  tons  No.  1 
Shott's  (Scotch)  pig  iron,'  to  be  shipped  'from  Glasgow  as  soon  as 
possible.'  It  is  not  merely  500  tons  of  iron  of  a  certain  quality;  nor 
is  it  such  iron  to  be  shipped  as  soon  as  possible  from  any  Scotch  port 
or  ports;  but  it  is  iron  of  that  quality  to  be  shipped  from  the  par- 
ticular poz-t  of  'Glasgow  as  soon  as  possible.'  The  court  has  neither 
the  means,  nor  the  right,  to  determine  why  the  parties  in  their  con- 
tract specified  'shipment  from  Glasgow,'  instead  of  using  the  more 
general  phrase  'shipment  from  Scotland,'  or  merely  'shipment,'  "with- 
out naming  any  place;  but  is  bound  to  give  effect  to  the  terms  which 

'  Filley  v.  Pope,  115  U.  S.  213,  29  L.  ed.  372. 

14008  O.  W. 49 


770  I  EXTRATERRITORIAL  CASES. 

the  parties  have  chosen  for  themselves.  The  term  'shipment  from 
Glasgow'  defines  an  act  to  be  done  by  the  sellers  at  the  outset,  and 
a  condition  precedent  to  any  liability  of  the  buyer.  The  sellers  do 
not  undertake  to  obtain  shipment,  nor  does  the  buyer  agree  to  accept 
iron  shipped,  at  any  other  port.  The  buyer  takes  the  risk  of  delay 
in  getting  shipment  from  Glasgow,  or  of  delay  or  disaster  in  pros- 
ecuting the  voyage  from  Glasgow  to  New  Orleans.  But  he  does  not 
take  the  risk  of  delay  or  of  sea  perils  which  may  occur  in  the  course 
of  the  different  voyage  from  Leith  to  the  same  destination." 

In  the  case  at  bar  the  vendor  was  not  limited,  as  in  that 
cited,  to  a  single  port  of  shipment;  he  was  authorized  to 
ship  from  any  port  of  the  ''Pacific  Coast."  But  under  the 
doctrine  above  stated  he  was  not  justified  in  shipping  from 
any  other.  A  letter  from  defendant's  home  office  received 
in  evidence  (Ex.  "H")  states  as  a  reason  for  the  change 
in  the  port  of  shipment  that  if  the  goods  had  been  sent 
"thru  Pacific  Coast  ports  they  would  likely  have  been 
in  transit  from  90  days  to  4  months,  owing  to  the  extreme 
railway  congestion."  Defendant's  counsel  also  states  that 
defendant's  president  if  present  would  testify  that  "the 
goods  were  not  shipped  from  San  Francisco  owing  to  a 
congestion  in  freight  and  conditions  existing  in  the  United 
States  at  that  time  due  to  the  war."  In  other  words, 
according  to  the  vendor's  view,  shipment  from  New  York 
would  have  brought  the  goods  earlier  than  shipment  from 
the  "Pacific  Coast"  as  required  by  the  contract.  But  in 
the  case  above  cited  the  cargo  not  only  could,  but  actually 
did,  arrive  earlier  from  Leith  than  it  could  have  arrived 
from  Glasgow  and  the  Supreme  Court  nevertheless  allowed 
the  vendee  to  rescind.  We  need  not,  therefore,  stop  to 
determine  the  admissibility  of  plaintiff's  evidence  that  de- 
fendant's president  said  before  the  contract  was  made  that 
the  cargo  was  already  on  the  Pacific  Coast  and  that  the 
contract  was  entered  into,  on  the  strength  of  that  state- 
ment, for  a  higher  price  than  he  would  have  paid  for  goods 
located  elsewhere.  For  having  inserted  into  the  contract 
an  unqualified  requirement  that  shipment  should  be  "from 
Pacific  Coast"  the  vendee  is  entitled,  under  the  rule  above 
stated,  to  its  enforcement.  Of  course,  a  showing  that  ship- 
ment "from  Pacific  Coast"  was  impossible  might  afford  a 
valid  defence  to  this  action  or  at  least  to  one  for  damages 


IN  RE  MARTIN'S  WILL,  JUNE  19,   1918.  771 

for  non-performance,  but  such  a  showing  is  not  made.  The 
letter  above  quoted  assumes  as  we  have  seen  that  shipment 
"from  Pacific  Coast"  vi^as  possible,  even  if  slower,  and 
evidence  (Ex.  "M"  to  "S")  is  offered  by  plaintiff  of  other 
shipments  from  that  region  during  the  period  in  question. 

We  need  not,  therefore,  stop  to  determine  the  effect  of 
delay  upon  this  contract  nor  to  decide  whether,  if  the  goods 
had  been  shipped  "from  Pacific  Coast,"  plaintiff  would 
have  been  justified  in  rejecting  them.  The  conceded  failure 
to  observe  the  requirement  as  to  the  place  of  shipment  is, 
under  the  doctrine  which  we  are  bound  to  follow,  a  mate- 
rial one  and  entitles  the  plaintiff  to  rescind.  - 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
have  and  recover  from  defendant  the  said  advance  payment 
of  Tls.  4,000  with  interest  thereon  at  6%  per  annum  from 
March  6,  1918,  the  date  of  filing  the  petition,  together  with 
costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  W.  A.  P.  Martin's  Will. 

[Cause  No.  562;  filed  June  19,  1918.1 

SYLLABUS. 

(By  the  Court.) 

I.WILLS:    Codicils;   Construction.    A  will  and  its  codicils  are  to 
be  construed  +o^ether  as  one  instrument. 

2.  Id.  :  Where  the  provisions  of  one  of  such  instruments  conflict  with 

those  of  another,  the  latest  prevail. 

3.  Id.  :   Republication.     The  latest  codicil  effects  a  republication  of 

preceding  ones  as  well  as  of  the  original  will. 

4.  Id.  :  While  the  requirements  of  a  codicil  as  to  attestation  are  the 

same  as  those  of  a  will,  a  codicil  defective  in  that  regard  may 
be  validated  by  a  subsequent  one. 

5.  Id.  :   Rule  Applied.     A  will  with  various  codicils,  of  which  some 

were  insufficiently  attested,  construed  with  the  aid  of  the  latest 
codicil  and  execution  of  the  testator's  intent,  thus  ascertained, 
directed. 

Messrs.  Jernigan,  Fessenden  &  Rose,  for  the  executors 
and  proponent. 

'Norrington  v.  Wright,  115  U.  S.,  188,  29  L.  ed.,  366;  cf.  Dieder- 
ichsen  &  Co.  v.  Connell  Bros.  Co.,  ante,  pp.  297,  333. 


772  I  EXTRATERRITORIAL  CASES. 

LX)BINGIER,  J.: 

This  cause  comes  on  for  hearing  upon  the  petition  of  the 
executors  of  the  Last  Will  and  Testament  of  Dr.  William 
A.  P.  Martin,  the  veteran  missionary  who  died  at  Peking 
on  December  17,  1916,  after  sixty-six  years  of  service  in 
China.  Proof  of  publication  of  notice  to  creditors  was 
duly  filed  and  the  executors'  final  account  shows  the 
payment  of  all  claims  presented.  The  petition  now  before 
us  asks  for  approval  of  said  accounts,  the  barring  of 
further  claims,  the  compensation  of  themselves  and  their 
attorneys,  and  final  distribution  of  the  assets  "according 
to  the  provisions"  of  the  will.  The  last  item  calls  for  a 
construction  of  the  original  instrument  which  was  ex- 
ecuted on  June  14,  1905,  together  with  its  various  ap- 
pendages, all  of  which  appear  to  have  been  not  only  signed 
but  written  by  the  testator  himself,  and  are  successively 
indicated  as  follows: 

October  23,  1907,   (Ex.  B)   "Codicil,"  one  witness. 
November  2,  1907,   "Addendum,"  one  witness. 

January  1,  1908,  an  unwitnessed  memorandum  in  the  testator's 
handwriting. 

January  31,  1908,  one  witness. 

October  24,  1913,  one  witness. 

May  4,  1914,  (Ex.  C)  "Disposal  of  Literary  Pi'operty,"  one  witness. 

January  25,  1915,  "Postscript,"  one  witness. 

March  15,  1915,  no  witness. 

December  16,  1915,    (Ex.   E)    "Codicil,"  two  witnesses. 

Under  the  Act  of  Congress  of  March  3,  1901, 

"all  devises  and  bequests  shall  remain  and  continue  in  force 
*  *  *  unless  the  same  shall  be  altered  or  revoked  by  some  other 
will,  testament  or  codicil  in  writing,  or  other  writing  of  the  testator 
signed  in  the  presence  of  at  least  two  witnesses  attesting  the  same, 
any  former  law  or  usage  to  the  contrary  notwithstanding."  ^ 

Prima  facie  this  would  seem  to  invalidate  all  of  the  fore- 
going supplementary  instruments  which  were  not  attested 
by  two  witnesses.     But  the  rule  is  that  a  duly  executed 

'31  U.  S.  Stats,  at  Large,  sess.  II,  Part  1,  Ch.  854,  (D.  C.  Code), 
sec.  1626. 


IN  RE  MARTIN'S  WILL,  JUNE  19,   1918.  773 

codicil  effects  a  republication  of  the  original  will  -  and, 
according  to  the  weight  of  authority,^  of  all  intermediate 
codicils.  Moreover,  most  if  not  all  of  these  instruments 
appear  to  be  holographic  and  where  such  is  the  case  the 
requirements  of  attestation  are  not  imperative.*  All  of 
these  instruments  must,  therefore,  be  construed  together,^ 
but  in  case  of  conflict  the  latest  codicil  (here  Ex.  E)  con- 
trols.® With  these  principles  in  mind  we  may  now  proceed 
to  ascertain  the  testator's  intent. 

II. 

The  second  clause  of  the  original  will  (Ex.  A)  divides 
the  entire  property  between  the  testator's  two  sons,  W.  R. 
and  Newell  Martin,  subject  to  certain  bequests.  But  the 
last  codicil  (Ex.  E)  names  Newell  Martin  as  the  sole 
residuary  legatee,  it  appearing  that  the  other  son,  W.  R. 
Martin,  had  meanwhile  died.  But  the  residuary  legatee's 
rights  are  subject  to  the  following  bequests: 

1.  A  third  son,  Claude  V.  Martin,  is  provided  for  by  a 
"yearly  allowance"  of  $600,  United  States  currency,  and  a 
devise  of  four  lots  in  Seattle.  This  provision  is  contained 
in  the  original  will  (Ex.  A) ,  mentioned  in  the  "Addendum," 
and  confirmed  in  the  last  codicil  (Ex.  E). 

2.  The  codicil  of  October  23,  1907  (Ex.  B),  recites  that: 

"In  addition  to  payments  provided  for  in  the  will,  one  thousand 
two  hundred  dollars  Mex.  are  to  be  paid  annually  to  the  Presbyterian 
Mission  in  Peking  for  scholarships,  or  other  uses  in  Truth  Hall,  the 
Mission  High  School," 

An  holographic  instrument  bearing  the  date  January  1, 
1908,  contains  the  following  memorandum : 

"$1,000  Mex.  to  be  paid  yearly  from  the  income  of  the  East  Gate 

property  to  the  Presbyterian  High  School  Truth  Hall,  in  Peking." 

. J 

MO  Cyc,  1216,  notes  10,  14;  Woerner,  American  Law  of  Ad- 
ministration, I,  86,  note  3. 

"  Redfield  on  Wills,  I,  289,*  notes  9  and  10. 
'40  Cyc,  1130,  note  12;   1132,  note  42. 
"40  Cyc,   1421,  notes  65,  66,   67  and   70. 
"Id.,  1219,  note  32;  1422,  note  72. 


774  I  EXTRATERRITORIAL  CASES. 

The  instrument  of  January  31,  1908,  indorsed  on  the 
same  sheet  (Ex.  B)  as  the  codicil  mentioned  in  the  first 
paragraph  under  this  subdivision,  recites: 

"I  wish  the  annuity  *  to  the  High  School  'Truth  Hall'  to  be  paid 
from  the  income  of  the  East  Gate  property,  Shanghai,  to  be  used  in 
aid  of  indigent  students  or  to  support  or  aid  students  engaged  in 
evangelistic  work,  or  theological  studies." 

"*  amounting  to  one  thousand  dollars  Mex." 

Upon  a  sheet  attached  to  the  original  instrument 
(Ex.  A)  appears  the  following  recital: 

"I  here  renew  a  provision  of  one  thousand  dollars  Mex.  to  be  paid 
from  my  East  Gate  property  in  Shanghai  for  the  support  of  students 
in  Truth  Hall  Academy  by  my  heirs  aforesaid." 

The  annuity  is  expressly  confirmed  in  the  last  codicil 
(Ex.  E)   which  charges  the  executors 

"to  see  to  it  that  provision  is  made,  in  any  event,  for  the  annual 
payments  heretofore  directed  by  me  for  the  benefit  of  Truth  Hall, 
or  of  scholarships  in  Truth  Hall,  or  for  scholarships  in  Truth  Hall." 

This  last,  however,  does  not  specify  the  amount,  which, 
it  will  be  seen,  was  originally  fixed  at  $1,200  but  would 
appear  to  be  reduced  by  the  later  instruments  to  $1,000. 
Recognizing,  however,  that  this  was  probably  an  inad- 
vertence due  to  a  failure  at  the  time  to  refer  to  the  original 
memorandum,  the  residuary  legatee,  according  to  the 
executor's  testimony,  has  generously  waived  his  right  to 
the  $200  and  asked  that  the  annuity  as  originally  fixed  be 
allowed.  An  instrument  is  also  on  file,  signed  by  the 
Chairman  of  the  Presbyterian  Mission  which  maintains  the 
said  "Truth  Hall,"  authorizing  its  principal.  Rev.  W.  H. 
Gleysteen,  to  receive  the  said  annuity. 

The  "East  Gate  property"  from  the  income  of  which  this 
annuity  is  to  be  paid  appears  (Ex.  G)  to  have  been  pur- 
chased by  the  testator  as  long  ago  as  June  9,  1863,  with 
money  borrowed  from  one  Chang  Szekwei.  The  instru- 
ment recites  that  in  lieu  of  interest  on  the  loan  the  prop- 
erty "shall  be  divided  into  two  equal  parts;  and  the 
northern  half  be  given  to  Chang  Szekwei,  to  hold  and  pos- 
sess." Sons  of  the  last  named  were  called  as  witnesses  and 
testified  that  they  had  inherited  one-half  of  this  property 


IN  RE  MARTIN'S  WILL,  JUNE   19,   1918.  775 

from  Chang  Szekwei  and  had  received  one-half  of  the 
income  for  some  forty  years,  the  testator  receiving  the 
other  half.  The  latter  further  recognizes  the  arrangement 
in  an  autographic  memorandum  dated  January  1,  1908 
(Ex.  H),  reciting: 

"I  advise  that  the  East  Gate  Property  be  not  divided  unless  in- 
sisted on  by  the  Chang  Family,  but  that  it  continue  in  the  name  of 
my  heirs." 

In  1910  a  formal  agreement  (Ex.  F)  was  executed  by 
and  between  different  members  of  the  Chang  Family  de- 
fining their  respective  shares.  It  seems  clear  from  all  this 
that  the  residuary  legatee  under  this  will  takes  only  an 
undivided  half  interest  in  the  East  Gate  property;  and 
that  until  actual  division  is  made  he,  like  his  co-tenants, 
is  entitled  to  but  one-half  of  the  income. 

3.  The  "Addendum"  of  November  2,  1907,  provides: 

"My  servant  Pai  and  my  writer  Chao,  the  latter  an  old  student 
of  mine  shall,  if  with  me  to  the  end,  receive  each  two  hundred  dollars 
Mex." 

Another  instrument  (indorsement  on  Ex.  H)  recites: 

"My  head  servant  Pai-oh  and  my  writer  Chao  Shouhong,  if  with 
me  until  my  decease  are  each  to  receive  $300  Mex." 

The  memorandum  of  January  25,  1915  (indorsed  on  the 
back  of  Ex.  D),  recites: 

"My  servant  Pai  and  my  writer  Chao  in  the  case  provided  for 
shall  each  receive  four  hundred  dollars  Mex.  (instead  of  two  hun- 
dred)." 

The  deposition  of  one  of  the  executors,  Rev.  C.  L.  Ogilvie, 
filed  on  June  14,  1918,  shows  that  these  two  Chinese  did 
remain  with  the  testator  "to  the  end"  and,  therefore,  com- 
plied with  the  conditions  of  this  bequest. 

4.  The  instrument  of  May  4  (Ex.  C),  recites: 

"Dr.  A.  H.  Smith  having  consented  to  edit  my  autobiography — in- 
cluding Cycle  of  Cathay — I  request  him  to  act  in  all  respects  as  my 
literary  executor.  He  is  to  have  such  of  my  mss.  as  he  may  require 
and  to  make  such  arrangements  with  Revells,  or  other  publishers 
as  to  him  seems  good. 

"The  profits  of  said  biography,  if  any,  are  to  accrue  solely  to  Dr. 
Smith,  as  some  compensation  for  his  time  and  labor. 


776  I  EXTRATERRITORIAL  CASES. 

"For  the  fraternal  interest  which  he  has  taken  in  this  labor  of 
love  I  hereby  express  my  gratitude  and  I  trust  it  will  promote  the 
glory  of  God  and  advance  the  cause  of  missions." 

5.  The  "Postscript"  (Ex.  D)  provides: 

"My  few  books  to  be  divided  by  three  ladies  to  whom  I  am  greatly 
indebted  for  the  comfort  of  my  last  years,  viz.,  Mrs.  Cunningham, 
Mrs.  Johnson  and  Mrs.  Ogilvie.  Each  will  claim  her  own  furniture, 
which  I  have  had  in  use." 

These  three  last  bequests  (3,  4,  and  5)  appear  to  be 
confirmed  in  that  clause  of  the  last  codicil  (Ex.  E) 
providing  "for  the  unrevoked  legacies  and  bequests  here- 
tofore made  by  me  to  persons  other  than  my  sons." 

A  bequest  to  the  son  of  a  nephew,  provided  in  clause  3 
of  the  original  instrument  (Ex.  A),  is  expressly  revoked 
by  the  indorsement  of  March  13,  1915,  on  the  "Postscript" 
(Ex.  D). 

The  preceding  indorsement  on  said  instrument  also 
provides  that: 

"In  case  a  son  of  C.  V.  Martin  (testator's  son)  should  come  for- 
ward as  a  claimant,  he  shall  receive  one  dollar  Mex.  and  no  more." 

The  executor's  testimony  is  that  no  such  claimant  has 
appeared  and  the  item  need  not  further  be  considered. 

III. 

The  allowances  to  the  executors  and  their  attorneys  have 
been  fixed  by  an  arrangement  with  the  residuary  legatee 
who,  since  there  are  no  unpaid  creditors,  is  the  only  party 
concerned.  He  agrees  to  an  award  of  Tls.  5,000  to  the 
executors  and  of  Tls.  1,500  to  the  attorneys.  By  mutual 
arrangement  between  themselves  the  executors  have  divided 
their  fee  in  the  proportion  of  Tls.  3,500  to  Mr.  A.  C.  Davis 
and  Tls.  1,500  to  Rev.  C.  L.  Ogilvie. 

It  is  accordingly  considered  and  decreed: 

1.  That  the  executors'  final  accounts  of  December  31,  1917,  and 
February  14,  1918,  be  and  the  same  are  hereby  approved. 

2.  And  it  appearing  that  all  of  the  claims  presented  within  six 
months  from  the  publication  of  notice  to  creditors  have  been  paid, 
all  other  claims  are  hereby  forever  barred. 


IN  RE  MARTIN'S  WILL,  JUNE   19,   1918.  777 

3.  After  paying  the  costs  of  this  proceeding  the  exeeutors  are 
authorized,  according  to  the  wish  of  the  legatee,  to  deduct  for  them- 
selves the  sum  of  Tls.  5,000,  Mr.  Davis  taking  Tls.  3,500  and  Mr. 
Ogilvie  Tls.  1,500,  and  to  pay  their  attorneys  Messrs.  Jernigan,  Fes- 
sienden  &  Rose  in  full  for  their  services  the  sum  of  Tls.  1,500. 

4.  The  executors   are  thereupon  directed: 

(a)  To  take  such  steps  as  may  be  required  of  them  to  vest  in  the 
testator's  son  Claude  V.  Martin  all  right,  title  and  interest  in  and 
to  the  "four  lots  in  Seattle"  above  mentioned  and  discussed  in  be- 
quest  (1)  ; 

(6)  To  distribute  to  the  testator's  sei'vant  "Pai"  and  his  writer 
"Chao"  the  sum  of  Mex.  $400  each; 

(c)  To  deliver  to  Dr.  A.  H.  Smith  all  manuscripts  needed  in  order 
to  carry  out  his  commission  to  edit  the  testator's  autobiography,  and 
to  render  all  needful  assistance  to  said  editor  in  publishing  the  same 
and  realizing  the  profits  thereof; 

(d)  To  distribute  to  the  three  ladies  mentioned  in  the  "Postscript" 
(Ex.  D)  the  testator's  books.  In  case  there  should  not  be  an  agree- 
ment among  the  three  as  to  the  basis  of  division  the  executors  are 
authorized  to  report  that  fact  to  the  Court  for  further  order; 

(e)  To  distribute  to  the  residuary  legatee,  Newell  Martin,  and 
to  take  all  necessary  steps  to  vest  in  him  title  and  possession  in  and 
to  the  residue  of  the  estate  subject  to  a  charge  thereon  of  an  annuity 
of  $600,  United  States  Currency,  to  the  testator's  other  son,  Claude 
V.  Martin. 

The  testator's  undivided  half-interest  in  the  property  referred  to  in 
the  will  as  the  "East  Gate  Property"  and  more  particularly  described 
as  "No.  157  and  No.  158  of  the  American  Consulate  Registry  at 
Shanghai,"  the  other  undivided  half  interest  in  which  is  found  to  be 
vested  in  the  heirs  and  executors  of  Chang  Szekwei,  is  further  sub- 
ject to  a  charge  of  Mex.  $1,200  annually  in  favor  of  the  institution 
known  as  "Truth  Hall"  which  annuity  may  be  paid  by  the  legatee 
to  the  Rev.  W.  H.  Gleysteen,  principal  thereof.  Should  either  of 
the  aforesaid  legatees  (Claude  V.  Martin  or  Truth  Hall)  require  a 
bond  from  the  said  residuary  legatee  for  the  execution  of  said  trusts 
and  the  payment  of  said  annuities,  such  bond  may  be  required  upon 
application   to   the   Court   before   final   distribution. 

(/)  Upon  filing  with  the  Clerk  of  this  Court  proper  receipts  from 
each  of  the  beneficiaries  and  legatees  above  named  for  his  or  her 
appropriate  share  in  said  estate  and  of  a  statement  from  each  of 
the  special  legatees,  Claude  V.  Martin  and  "Truth  Hall,"  thru  its 
principal  Rev.  W.  H.  Gleysteen,  of  a  waiver  of  the  execution  of  the 
bond  mentioned  in  the  preceding  paragraph,  the  executors  shall  stand 
discharged  of  all  liability  hereafter  arising,  any  collateral  security 
furnished  by  them  in  lieu  of  or  in  connection  with  their  bonds  may  be 
returned  to  them  and  the  estate  shall  be  considered  closed. 


778  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

J.  Spunt  &  Co.,  Plaintiff,  v.  American  Machinery  & 
Export  Co.,  Defendant. 

[Cause  No.  652;  filed  September  5,  1918.] 

SYLLABUS. 

(By   the  Court.) 

1.  CARRIERS:    CHARGES:    Election.     Where  a  bill  of  lading  makes 

freight  charges  "payable  on  weight  or  measurement  received 
or  delivered  at  carrier's  option"  the  latter  must  elect  whether 
to  charge  by  "weight  or  measurement." 

2.  Id.:  What  Constitutes.     Rendering  a  bill  computed  on  the  meas- 

urement basis,  accepting  payment  thereof  and  marking  the 
bill  of  lading  "freight  paid"  constitute  an  election  to  charge 
according  to  such  basis. 

3.  Id.  :  Revocation.     Such  an  election  cannot  be  revoked  except  upon 

recognized  grounds  like   fraud,  mistake,  etc. 

4.  Id. :  Bills  of  Lading:  Correction.     A  clause  in  the  margin  of  a 

bill  of  lading  which  reads  "rates,  weight  or  measurement  sub- 
ject to  correction"  covers  mistakes  but  does  not  entitle  the 
carrier  to  revoke  an  election  as  between  two  standards  of  charge. 

5.  Id.  :  Custom.     The  provisions  of  a  contract  cannot  be  nullified  by 

proof  of  local  custom  or  usage. 

Messrs.  Alleyi  &  Lucker,  by  Mr.  Lucker,  for  plaintiff. 
Richard  T.  Evans,  Esq.,  for  defendant. 

LOBINGIER,  J.: 

This  is  an  action  by  a  shipper  to  recover  from  a  marine 
carrier  money  demanded  by  the  latter  as  a  condition  to 
the  delivery  of  cargo,  and  paid  by  the  former,  as  it 
alleges,  under  protest.  The  following  averments  of  the 
petition  are  expressly  admitted  by  the  answer : 

"5.  On  the  1st  day  of  March,  1917,  defendant  sent  plaintiff  debit 
memo: 

To  freight  to  San  Francisco  on  500  bales  Raw  Cotton 

4,917  ft.  at  G$21  per  ton  40  cu.  ft.  G$2,581.43  at  86^ Tls.  2,957.71 

and  on  the  3rd  day  of  March,  1917,  other  debit  memos: 

To  freight  to  San  Francisco  on  394  bales  Raw  Cotton 

3,874  ft.  at  G$21  per  ton  40  cu.  ft.  G$2,033.85  at  86!^ Tls.  2,344.50 

and 

To  freight  to  -San  Francisco  on  208  bales  Raw  Cotton 
2,045  ft.  at  G$21  per  ton  40  cu.  ft.  G$l,073.63  at  863 Tls.  1,237.61 


J.  SPUNT  &  CO.  V.  AM.  M.  &  E.  CO.,  SEPT.  5,  1918.       779 

which  sums   plaintiff  duly   paid   to  defendant,   the   defendant   there- 
upon receipting  said  debit  memos. 

6.  On  the  12th  day  of  March,  1917,  after  the  said  s.  s.  Nippo  Maru 
had  departed  on  her  voyage  to  San  Francisco  defendant  sent  plaintiff 
other  debit  memos  figuring  the  freight  rate  on  a  weight  basis  of 
G$21  per  2,000  lbs.  and  demanding  from  plaintiff  an  additional  sum 
of  Tls.  654.31  which  sum  plaintiff  refused  to  pay. 

7.  On  arrival  of  said  s.  s.  Nippo  Maru  at  San  Francisco  defendant 
refused  to  deliver  said  cargo  without  first  receiving  the  sum  of 
G$639  additional  freight." 

Each  of  the  three  bills  of  lading  bears  date  February 
27,  1918,  and  is  marked  "Freight  Paid,"  which  notation, 
it  is  not  denied,  was  made  by  defendant.  In  the  latter's 
brief  it  is  claimed  (p.  3)  : 

"The  amount  due  was  not  the  amount  of  freight  on  a  measurement 
or  weight  basis  as  defendant  might  choose  *  *  *;  it  was  the 
amount  which  was  most  to  the  benefit  of  the  ship." 

But  each  bill  of  lading  provides  (Clause  9)  : 

"Freight  is  payable  on  weight  or  ')neasurement  received  or  delivered 
at  carrier's  option. 

By  this  we  understand  that  defendant  had  an  election 
to  charge  on  a  weight  basis  or  on  a  measurement  basis 
but  that  it  was  obliged  to  elect  the  one  or  the  other;  and 
such  an  election  need  not  have  been  express. 

"An  election  may  also  be  implied — that  is,  inferred — from  the  con- 
duct of  the  party,  his  acts,  omissions,  modes  of  dealing  with  other 
property,  acceptance  of  rents  and  profits,  and  the  like." ' 

A  party  entitled  to  payment  for  his  labor  in  either  a 
certain  rate  gold  or  a  certain  rate  other  currency  was  held 
to  have  exercised  his  election  by  presenting  bills  for  a  par- 
ticular rate.- 

Here  defendant  sent  its  freight  bills  computed  on  a 
measurement  basis,  accepted  payment  accordingly  and 
marked  the  bills  of  lading  "Freight  paid,"  and  this,  we 
think,  constituted  at  least  an  implied  election  of  the 
measurement  basis.     Indeed  there  is  ample  authority  ^  for 


'  Pomeroy,  Equity  Jurisprudence   (3d  ed.),  I,  p.  853. 
'  Stephens  v.  Howe,  34  N.  Y.  Super.  Ct.,  138. 

'  Cyc.  XXX,  1219  and  cases  cited  in  note  82;   Bishop,  Contracts, 
sec.  786. 


780  I  EXTRATERRITORIAL  CASES. 

the  proposition  that  "the  right  of  election  does  not  exist 
after  the  daj^  when  the  payment  becomes  due."  This 
applies  to  one  who  has  an  option  as  to  the  form  of  making 
payment  and  we  see  no  reason  why  it  should  not  be 
equally  applicable  to  one,  like  defendant,  whose  option 
relates  to  the  basis  of  requiring  payment.  Under  clause 
8  of  the  bills  of  lading  "Freight  is  payable  in  advance 
"  *  *  or  on  delivery  *  *  *  ^^  carrier's  option." 
Defendant  having  sent  bills  and  accepted  payment  "in 
advance"  evidently  exercised  the  option  of  rendering  the 
freight  so  payable  and  under  the  rule  last  above  quoted 
the  right  of  election  ceased.  At  any  rate  it  is  elementary 
that  such  an  election  once  exercised  is  final  except  for 
grounds  which  do  not  exist  here.  As  observed  in  a  work  * 
above  cited: 

"Where  an  election  is  once  made  by  the  party  bound  to  elect, 
either  expressly  or  inferred  from  his  conduct,  it  binds  not  only  him- 
self, but  also  those  parties  who  claim  under  him." 

"Whenever,  by  law  or  by  contract,  a  party  has  laid  before  him 
a  variety  of  steps,  the  taking  of  one  of  which  excludes  another  or 
the  rest  he  must  choose  between  them.  After  his  choice  is  made, 
and  by  words  or  by  acts  expressed  in  a  manner  suited  to  the  par- 
ticular case,  he  cannot  reverse  it;  he  is  said  to  have  elected  the  one 
step  and  waived  the  other."  ° 

11. 

Defendant  alleges: 

"that  the  Bill  of  Lading  in  question  bore  in  plain  type  the  statement 
'Rates,  Weight  or  Measurement  Subject  to  Correction,'  "  and  "that 
by  virtue  of  the  above  mentioned  clause  or  otherwise  it  is  the  usage 
in  the  trade  between  Tientsin  and  America  to  retain  a  lien  on  cargo 
until  all  charges  which  might  have  been  levied  at  the  time  the  bill  of 
lading  was  issued,  if  levied  at  a  later  time  but  before  delivery  of 
cargo,  are  paid,  and  that  this  usage  was  known  to  the  defendant, 
and  was  by  him  impliedly  admitted  to  control  his  rights  in  the  case 
In  dispute." 

We  are  disposed  to  agree  with  plaintiff's  counsel  that 
"correction  presupposes  a  mistake  in  fact;  otherwise  there 
is   nothing   to   correct."     But   defendant   nowhere   claims 


■*  Pomeroy,  Equity  Jurisprudence    (3d  ed.),  I,  856. 
'Bishop,  Contracts,  sec.  808.     Cf.  Am.  &  Eng.  Encyc.  of  Law   (Ist 
ed.),  254. 


J.  SPUNT  &  CO.  V.  AM.  M.  &  E.  CO.,  SEPT.  5,  1918.   781 

to  have  made  a  mistake  in  computing  its  original  charge. 
Indeed  its  brief  declares   (p.  3)  : 

"There  was  no  uncertainty  at  any  time  as  to  the  amount  due." 

Clearly  then  there  was  no  occasion  for  correction. 
Moreover,  defendant's  manager  testifies  as  the  sole  reason 
for  demanding  the  additional  amount  here  in  controversy 
that  "the  weight  basis  figured  out  to  the  advantage  of  the 
company."  But  surely  this  might  have  been  ascertained 
before  the  freight  bills  were  sent  and  payment  accepted, 
and  failure  to  have  done  so  affords  no  ground  for  revoking 
the  election  actually  made.  The  marginal  clause  invoked 
by  defendant  was  evidently  intended  to  provide  a  remedy 
for  errors  in  "rates,  weight  or  measurement"  but  not  to 
enable  it,  on  an  afterthought,  to  increase  its  charge  where 
no  such  error  had  occurred. 

Nor  does  there  seem  to  be  any  room  here  for  applying 
the  rule  that  a  bill  of  lading  may  be  contradicted  and 
shown  to  be  erroneous.  Defendant  did  not  attempt  to 
prove  that  the  notation  "freight  paid"  was  false;  all  it 
claimed  was  that  after  such  notation  had  been  made  and 
payment  accepted  thereunder,  it  sought  additional  pay- 
ment by  reason  of  a  new  computation  upon  a  different  basis. 

We  are  unable  to  find  that  defendant  has  proved  the 
last  averment  above  quoted.  The  testimony  fails  to  estab- 
lish a  general  custom  such  as  is  there  alleged;  the  wit- 
nesses who  were  called  spoke  principally  of  what  they  would 
do  under  certain  circumstances  and  were  notably  lacking 
in  concrete  examples.  But  even  had  such  a  custom  been 
proved  it  could  not  override  the  plain  provisions  of  law 
and  contract  by  which  defendant  was  given  the  option 
which  it  exercised. 

"A  custom  or  usage  which  is  repugnant  to  the  terms  of  an  express 
contract  is  not  permitted  to  operate  against  it,  and  evidence  of  it  is 
inadmissible;  for  while  usage  may  be  admissible  to  explain  what  is 
doubtful  it  is  never  admissible  to  contradict  what  is  plain." " 

We  must  find  that  defendant  was  not  entitled  to  de- 
mand the  additional  payment  of  $639  and  as  there  is  no 

•Cyc,  XII,  1091,  1092. 


782  I  EXTRATERRITORIAL  CASES. 

claim  that  it  was  a  voluntary  payment  but,  on  the  con- 
trary, it  having  admittedly  been  made  solely  to  obtain  the 
delivery  of  cargo  whose  freight  charges  had  already  been 
paid,  plaintiff  is  entitled  to  recover  it  back.  Had  the 
petition  prayed  for  interest  it  likewise  would  be  awarded 
but  the  prayer  is  limited  to  the  amount  and  costs,  there 
being  not  even  a  prayer  for  general  relief. 

It  is  accordingly  considered  and  adjudged  that  plain- 
tiff have  and  recover  from  defendant  the  said  sum  of  $639 
United  States  currency,  together  with  its  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Marciano  Osete. 

[Cause  No.  687;  filed  September  19,  1918.] 

SYLLABUS. 
(By  the  Court.) 

EVIDENCE:  RuLE  OF  REASONABLE  DouBT  APPLIED.  Where  the  ac- 
cused was  only  one  of  numerous  parties  having  access  to  a  trunk 
containing  money  which  he  is  charged  with  having  stolen,  and 
where  he  is  able  to  show  another  possible  source  of  the  price 
of  rings  purchased  the  day  after,  it  cannot  be  said,  in  the 
absence  of  other  evidence,  that  he  is  proven  guilty  beyond  a 
reasonable  doubt. 

R.  T.  Bryan,  Jr.,  Esq.,  Special  U.  S.  Atty.,  for  the 
prosecution. 

Dr.  H.  C.  Met,  for  defense. 

LOBINGIER,  J..* 

The  accused  is  charged  with  the  larceny  of  $50  which 
the  complaining  witness  claims  to  have  placed  in  his  trunk 
on  the  morning  of  September  3.  Returning  in  the  evening 
at  about  6:10  he  says  that  he  found  his  trunk  "bent" 
and  his  money  gone.  The  two  occupied  the  same  house 
but  not,  according  to  the  accused  at  least,  the  same  room. 
At  any  rate  the  room  in  which  the  trunk  was  kept  was 
not  locked.  Four  other  Filipinos  occupied  rooms  in  the 
same  house  and  that  of  the  complaining  witness  was 
accessible  to  the  others  as  well  as  to  the  Chinese  cook 
and  house  boy.     Indeed,  it  appears  that  the  outside  door 


UNITED  STATES  V.  OSETE,  SEPT.  19,  1918.      783 

was  unlocked  and  that  the  room  might  have  been  entered 
by  some  one  coming  from  the  street.  These  facts  make  the 
defense  even  stronger  than  one  in  which  another  accused 
was  acquitted  of  a  similar  charge.^ 

The  circumstances  (for  there  is  no  direct  evidence) 
chiefly  relied  upon  by  the  prosecution  are  that  the  accused 
purchased  two  rings  on  the  morning  after  the  money  was 
missed  at  a  price  not  exceeding  $36  and  that  previously 
he  had  been  short  of  money.  He  presents  a  detailed 
statement,  however,  of  his  income  and  expenses  from  the 
time  of  his  arrival  in  Shanghai  at  the  end  of  June,  which, 
if  it  is  to  be  accepted,  would  explain  the  source  of  the 
purchase  price  of  the  rings  especially  since,  according  to 
the  testimony  of  the  detective,  it  was  only  $34.  It  is  true 
that  this  statement  allowed  the  accused  very  little  for 
spending  money  and  barely  provided  for  ordinary  neces- 
sities; but  we  do  not  find  that  the  prosecution  succeeded 
in  showing  any  considerable  other  expenditure  and  what- 
ever the  accused  is  shown  to  have  borrowed  appears  to 
have  been  repaid. 

There  are  certain  unfavorable  circumstances,  like  de- 
fendant's attempt  to  secrete  the  rings  when  arrested, 
which,  however,  he  explains  by  saying  that  he  feared  they 
would  be  taken  from  him  at  the  police  station. 

On  the  other  hand,  there  are  some  favorable  circum- 
stances. It  is  conceded  that  he  did  not  attempt  to  escape 
even  tho  he  had  opportunity  and  that  he  waited  at  his 
former  place  of  employment  until  the  secret  service  agent 
should  come  to  arrest  him.  He  admitted  that  he  had 
but  $2.50  on  arriving  in  Shanghai  when  it  would  have 
strengthened  his  story  to  have  claimed  more.  Then  he 
refers,  unnecessarily,  to  a  certain  difl!iculty  in  the  Philip- 
pines which,  however,  has  no  bearing  on  the  present  case. 

"It  is  true  that  the  commission  of  crime  may  be  proven  by  cir- 
cumstantial evidence.  In  such  cases,  however,  the  circumstances 
must  be  just  as  convincing  as  vi^hen  the  proof  is  direct  and  positive. 
The  circumstances  must  be  such  as  to  lead  the  mind  of  the  judge 
irresistibly  to  but  one  conclusion,  namely,  the  guilt  of  the  person 
charged.     So  long  as  the  acts  of  the  accused  and  the  circumstances 

'  U.  S.  v.  Reyes,  3  Phil.,  3. 


784  I  EXTRATERRITORIAL  CASES. 

can  be  explained  upon  any  other  reasonable  hypothesis,  inconsistent 
with  his  guilt,  he  must  be  acquitted." " 

We  cannot  say  from  the  evidence  before  us  that  it  is 
not  a  reasonable  hypothesis  that  the  accused  had  sufficient 
money  to  buy  these  rings  without  having  stolen  it.  There 
are  circumstances  which  may  seem  suspicious  but  we  can- 
not convict  him  on  suspicion.  Giving  him,  as  we  must, 
the  benefit  of  a  reasonable  doubt  he  is  hereby  acquitted 
with  costs  de  officio. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Jose  A.  Diaz. 

[Causes  Nos.  678,  679;   filed   September   27,   1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  EVIDENCE:   MARRIAGE  of  a  defendant  in  a  criminal  cause  may  be 

proved  by  his  own  admissions. 

2.  Id.:  Adultery  found  sufficiently  proved  in  one  case  but  not  in  the 

other. 

3.  STATUTES:  APPLICABILITY:  Where  a  general  Act  of  Congress,  like 

the    Federal    Penal    Code,    is    applicable   it   will   be    applied   in 
preference  to  an  act  intended  for  a  particular  locality. 

R.  T.  Bryan,  Jr.,  Esq.,  Special  Assistant  U.  S.  Dist.  Atty., 
for  the  prosecution. 

M.  L.  Heen,  Esq.,  for  the  defence. 

LOBINGIER,  J.: 

The  information  in  cause  No.  678  charges  that  the  de- 
fendant 

"did  between  the  15th  day  of  February,  1917,  and  the  17th  day  of 
June,  1918,  live  as  man  and  wife,  with  one  *  *  =i.^  being  at  the 
time  married  to  one  *  *  *^  and  did  during  the  times  aforesaid,  at 
various  times,  commit  adultery  with  the  said  *  *  *  and  thereby 
was  and  is  guilty  of  the  crime  of  adultery,  against  the  laws  of  the 
United  States." 

The  information  in  cause  No.  679  is  similar  except  that 
the  name  of  the  woman  and  the  dates  are  different. 

It  is  admitted  by  the  defendant  that  he  did  live  with  the 

'  Id.,  5.     Cf.  U.  S.  V.  Martin,  ante,  p.  549. 


UNITED  STATES  V.  DIAZ,  SEPT.  27,  1918.  785 

woman  named  in  the  first  information  during  the  period 
there  specified  and  the  sole  question  is  whether  the  proof 
of  defendant's  marriage  is  sufficient.  For  it  is  not  claimed 
that  the  woman  is  married  and  unless  defendant  is,  the 
acts  charged  fail  to  constitute  that  particular  crime. ^ 

The  evidence  of  defendant's  marriage  consists  of  the  cer- 
tificate (Ex.  "I")  of  his  registration  at  the  American  Con- 
sulate-General which  cites  that: 

"He  is  married  to  *  *  *,  who  was  born  in  Alcala,  Pangasinan, 
Philippine  Islands." 

Following  this  is  a  list  of  children,  five  in  all. 

Defendant's  counsel  contends  that  this  certificate  is  not 
sufficient  evidence  of  marriage  because  the  facts  recited 
were  not  \vithin  the  official  cognizance  of  the  one  who  made 
the  certificate.  Whether,  standing  alone,  the  certificate 
would  suffice  we  need  not  stop  to  determine  for  the  vice- 
consul  who  prepared  the  certificate  testified  that  the  accused 
made  oath  that  the  information  contained  in  the  certificate 
was  true,  and  this  statement  is  corroborated  by  the  accused 
himself.  Moreover,  at  the  bottom  of  the  original  certificate 
appears  a  signature  purporting  to  be,  and  which  the  cer- 
tificate recites  is,  that  of  the  accused.  We  consider  this 
quite  sufficient  to  constitute  an  admission  of  marriage  on 
the  part  of  the  accused.  Indeed,  it  was  unnecessary  for  that 
purpose  that  the  accused  should  have  made  the  oath  and 
subscribed  his  signature;  if  he  had  simply  told  the  vice- 
consul  or  any  one  else  that  he  was  married  such  a  statement 
would  by  the  great  weight  of  authority  -  have  been  compe- 
tent evidence  against  him  and,  in  the  absence  of  contrary 
proof,  would  have  been  accepted  as  sufficient.  There  is  no 
attempt  at  contrary  proof  here.  The  defendant  did  not 
even  take  the  stand  in  his  own  behalf  in  these  cases.  We 
must,  therefore,  find  that  the  fact  of  marriage  is  proved  by 
defendant's  admission.  In  cause  No.  679  it  is  conceded  by 
the  prosecution  that  the  evidence  is  not  sufficient  to  convict, 
but  in  cause  No.  678  we  must  find  him  guilty  as  charged. 

There  are  several  acts  of  Congress  relating  to  the  crime 

'Federal  Penal  Code,  316;  Corpus  Juris,  XI,  14. 
'  Corpus  Juris,  XI,  27,  note  44, 

14008  O.  W. 50 


786  I  EXTRATERRITORIAL  CASES. 

of  adultery  and  imposing  different  penalties,  but  as  the 
Federal  Penal  Code  is  applicable  we  apply  it  in  preference 
to  any  special  law.  The  maximum  penalty  fixed  by  said 
code  ^  is  three  years  but  as  the  accused  has  already  been  in- 
carcerated for  nearly  two  months,  he  is  hereby  sentenced 
to  nine  months  of  imprisonment  to  be  served  in  the  Amer- 
ican Prison  at  Shanghai  until  he  can  be  transferred  to  Bili- 
bid  Prison,  Manila,  territory  of  the  Philippines,  where  the 
remainder  of  the  said  sentence  shall  be  served.  He  is  fur- 
ther adjudged  to  pay  the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

United  States  v.  Charles  August  Krausch  alias 
Charles  Nelson. 

[Cause  No.  676;  filed  October  1,  1918.] 

SYLLABUS, 

(By  the  Court.) 

CRIMINAL  PROCEDURE:  "STATE'S  EVIDENCE:"  REDUCTION  OF  PENALTY. 
A  recommendation  of  clemency  by  the  prosecutor  because  the 
accused  has  turned  "state's  evidence"  w^ill  ordinarily  be  adopted. 

Earl  B.  Rose,  Esq.,  Acting  U.  S.  Dist.  Atty.,  for  the  pros- 
ecution. 
H.  D.  Rodger,  Esq.,  for  the  defense. 

LOBINGIER,  J.: 

The  accused  pleads  guilty  to  an  information  charging 
him  with  participation  in  the  crime  of  armed  robbery, 
the  maximum  penalty  for  which  (there  being  no  specified 
minimum)    is  fifteen  years  of  imprisonment.^ 

The  accused  appears  to  have  no  previous  criminal  record 
and  his  participation  in  this  offence  appears  to  have  been 
brought  about  in  part  at  least  by  the  fact  of  his  German 
name  which,  tho  he  is  American  born,  prevented  his  obtain- 
ing employment.  On  this  ground  and  also  because  he 
assisted  materially  in  furnishing  evidence  for  the  convic- 
tion of  his  fellow  offenders  the  prosecution  recommends 

a  moderate  sentence.     Such  a  recommendation  would  seem 

> 

'Federal  Penal  Code,  sec.  316. 
'  Id.,  sec.  284. 


UNITED  STATES  V.  DIAZ,  OCT.  4,  1918.  787 

proper  for  consideration  by  the  Court  in  view  of  the  fact 
that  it  has  long  been  the  practice  for  the  prosecuting 
officer  to  grant  immunity  where  an  accomplice  in  a  crime 
becomes  what  is  known  as  "state's  evidence."  ^ 

The  Court,  therefore,  finds  the  accused  guilty  as  charged 
but  with  extenuating  circumstances,  and  sentences  him  to 
two  years  of  imprisonment  to  be  served  in  Bilibid  Pris- 
on, Manila,  territory  of  the  Philippines,  unless  duly 
transferred  elsewhere,  and  to  pay  the  costs  of  this  pros- 
ecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Jose  A.  Diaz. 

[Cause  No.  677;  filed  October  4,  1918.] 

SYLLABUS. 
(By  the  Court.) 

PERJURY:  EVIDENCE.  A  chai-ge  that  the  accused  did  "swear  that 
a  certain  passport  was  issued  in  his  name  and  for  him"  is 
not  supported  by  evidence  that  he  merely  delivered  an  altered 
passport  to  an  official  without  any  statement,  sworn  or  otherwise, 
as  to  the  name  in  which  it  was  issued  nor  for  whom. 

R.  T.  Bryan,  Jr.,  Esq.,  Assistant  Special  U.  S.  Dist.  Atty., 
for  the  prosecution. 
M,  L.  Heen,  Esq.,  for  defense. 

LOBINGIER,  J.: 

The  information  in  this  cause  charges  that  the  accused: 

"on  or  about  the  18th  day  of  October,  1916,  at  the  American 
Consulate-General  at  Shanghai,  China,  did  feloniously  on  his  exam- 
ination as  an  affiant,  before  an  American  Consular  official,  duly  sworn 
to  testify  to  the  truth,  in  matters  relating  to  his  registration  as  an 
American  citizen,  which  Consular  official  had  the  authority  to  ad- 
minister the  said  oath,  swear  that  Philippine  passport  No.  4871 
was  issued  in  his  name  and  for  him  when  in  truth  and  in  fact 
the  said  passport  was  issued  in  the  name  of  one  Raymundo  Conni, 
the  name  of  said  Raymundo  Conni  having  been  erased  by  him,  the 
said  Jose  Ampil  Diaz,  and  his  own  name  put  in  place  thereof,  the 

^  Bishop,  New  Criminal  Procedure,  II,  sec.  1161. 


788  I  EXTRATERRITORIAL  CASES. 

matters  so  testified  to  being  material  to  his  registration  as  an  Amer- 
ican citizen,  and  the  testimony  given  being  willfully  false." 

The  evidence  discloses  that  the  accused  did  appear  at 
the  Shanghai  Consulate-General  and  present  the  passport 
in  question  which,  as  found  in  another  cause  (No.  689), 
had  been  altered  by  him.  It  does  not  appear  that  any 
specific  questions  were  asked  him  regarding  the  passport. 
It  seems  to  have  been  accepted  as  genuine  and  while  the  pres- 
entation of  it  in  its  altered  form  was  doubtless  an  act  of  de- 
ception on  the  part  of  the  accused  we  find  no  evidence  in 
support  of  averment  that  he  did  "swear  that  Philippine 
passport  No.  4871  was  issued  in  his  name  and  for  him." 
To  swear  in  legal  parlance  is  "to  take  an  oath  before  an 
ofl?icer"  ^  that  a  specific  assertion  is  true.  We  cannot  see 
how  one  can  be  said  to  "swear"  to  the  genuineness  of  a 
passport  by  merely  delivering  it,  and  no  authority  is  cited 
for  such  a  contention.  Doubtless  the  act  of  delivery  under 
the  circumstances  implied  genuineness  but  it  did  not  con- 
stitute swearing  thereto.  It  may  be  also  that  such  act  was 
as  morally  reprehensible  as  an  oath  would  have  been  but 
the  accused  is  charged  with  having  sivorn  to  a  particular 
fact  and  that  charge  is  not  supported  by  showing  that  he 
did  something  else  tho  it  may  have  been  equally  wrong. 

It  is  unnecessary  to  construe  the  language  of  the  statute 
under  which  the  information  is  brought  for  the  latter  must 
control  and  would  not  be  aided  by  the  language  of  the  stat- 
ute even  if  it  were  broader. 

There  being  no  evidence  to  support  the  specific  charge 
the  accused  is  acquitted  with  costs  de  officio. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Jose  A.  Diaz. 

[Causes  Nos.  680,  681;  filed  October  4,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  ASSAULT :  Grades.  As  defined  in  the  Federal  Penal  Code  (sec. 
217)  assault  consists  of  two  grades,  one  of  the  distinctions 
between  which  is  the  "intent  to  do  bodily  harm." 

*  Anderson's  Law  Dictionary,  ad  verbum. 


UNITED  STATES  V.  DIAZ,  OCT.  4,  1918.  789 

2.  Id.  :  Intent.      An  accused    cannot  be  convicted  of  the  more  serious 
grade  where  the  information  fails  to  charge  such  intent. 

R.  T.  Bryan,  Jr.,  Esq.,  Assistant  Special  U.  S.  Dist.  Atty., 
for  the  prosecution. 

M.  L.  Heen,  Esq.,  for  defense. 

LOBINGIER,  J.: 

The  information  in  cause  No.  680  charges  that  the  ac- 
cused 

"on  or  about  the  27th  day  of  March,  1918,  at  BC  53-54  Range 
Road,  Shanghai,  China,  did  without  just  cause  or  excuse,  with  intent 
to  do  bodily  harm,  assault  one  *  *  *  by  throwing  poison  in  her 
face,  causing  her  great  bodily  harm,  and  thereby  was  and  is  guilty 
of  the  crime  of  felonious  assault,  against  the  laws  of  the  United 
States  of  America    (Federal  Penal  Code  of  1910,  sec.  276)." 

In  cause  No.  681  the  information  charges  that  he 

"on  or  about  the  15th  day  of  April,  1918,  at  BC  53-54  Range 
Road,  Shanghai,  China,  did  unlawfully  strike,  beat,  wound,  and  kick 
one  *  *  *  causing  her  great  bodily  harm  and  injury,  and  there- 
by was  and  is  guilty  of  the  crime  of  felonious  assault,  against  the 
laws  of  the  United  States  of  America  (Federal  Penal  Code  of  1910, 
sec.   276)." 

The  accused  and  the  complaining  witness  were  living 
together,  tho  unmarried,  at  the  time  of  these  alleged  oc- 
currences and  continued  so  to  live  until  the  latter  part  of 
June  of  the  same  year.  The  complaining  witness,  however, 
is  the  only  one  who  testifies  to  the  occurrence  alleged  in  the 
first  information  and  there  is  no  corroboration,  except  the 
affirmative  answer  of  a  Chinese  witness  (Kong  Woo)  to  the 
very  suggestive  question — 

Do  you  or  do  you  not  remember  ever  having  helped  *  *  *  wash 
some  poison  off  her  face? 

There  is  no  explanation  as  to  how  he  knew  it  was  poison 
or  why  he  should  be  called  to  remove  it.  The  defendant 
admits  that  he  had  prepared  a  poisonous  mixture  but  claims 
that  it  was  for  use  in  his  professional  work  as  a  physician, 
that  the  complaining  witness  had  taken  possession  of  it  with- 
out his  knowledge  and  was  about  to  swallow  it  and  that  in 
taking  it  from  her  some  of  it  was  accidentally  spilled  upon 
her  person.     This  explanation  may  not  seem  very  credible 


790  I  EXTRATERRITORIAL  CASES. 

but  on  the  other  hand  it  appears  strange,  if  the  complaining 
witness  had  been  the  victim  of  such  a  serious  attempt,  that 
she  did  not  complain  to  outsiders  and  still  more  strange  that 
she  continued  to  live  with  the  accused  for  nearly  three 
months  longer. 

The  failure  to  complain  is  the  more  conspicuous  because 
it  appears  that  she  did  make  prompt  complaint  regarding 
the  assault  alleged  in  the  second  charge.  Several  witnesses 
testify  to  seeing  marks  of  violence  upon  her  person  which 
she  stated  were  caused  by  the  accused  and  the  same  Kong 
Woo  specifically  testifies  to  having  seen  the  accused  strike 
the  complainant.  The  explanation  offered  by  the  accused 
does  not  in  our  judgment  overcome  this  testimony  and  we 
must  find  the  evidence  sufficient  to  convict  in  cause  No.  681 
tho  insufficient  in  cause  No.  680. 

It  will  be  seen  that  the  information  in  cause  No.  681  does 
not  allege  that  the  assault  was  committed  "with  intent  to  do 
bodily  harm"  or  "without  just  cause  or  excuse"  which  are 
the  phrases  used  in  the  statute  ^  to  define  the  more  serious 
assaults.  Such  intent  "is  an  essential  element  of  the  of- 
fence," -  and  in  the  absence  of  the  averment  or  proof  thereof 
we  can  find  the  accused  guilty  of  no  more  than  the  lighter  as- 
sault specified  in  the  statute.  He  is  accordingly  so  con- 
victed, and  a  fine  of  fifty  dollars.  United  States  currency, 
is  imposed  with  the  costs  of  this  prosecution,  and  with  sub- 
sidiary imprisonment,  in  Bilibid  Prison,  Manila,  according 
to  law,  in  case  of  insolvency. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Chris  Leonhardt  and  Bert  Terry. 

[Cause  No.   683;  filed  October  7,  1918.] 

SYLLABUS. 

(By  the  Court.) 

1.  CONSPIRACY:    ESSENTIALS.      To   commit   the   crime   of   conspiracy 

as  defined  in  the  Federal  Penal  Code  the  conspirator  need  have 
no  previous  acquaintance  with,  nor  need  either  know  of  the 
exact  part  performed  by,  his  confederate. 

2.  Id.:  Nor  need  more  than  one  of  the  conspirators  commit  an  overt 

act. 

'  Federal   Penal   Code,  sec.   276. 

'  Corpus  Juris,  V,  739  and  cases  cited  in  note  9. 


U.  S.  V.  LEONHARDT  ET  AL.,  OCT.  7,  1918.  791 

3.  Id.  :  Evidence.     The  crime  may  be  proved  by  circumstantial  evi- 

dence in  the  reception  of  which  great  latitude  is   allowed. 

4.  Id.  :  Id.  :  The  Order  of  Proof  is  discretionary  with  the  trial  court 

and  evidence  of  a  conspirator's  declarations  may  be  received 
before  the  conspiracy  is  fully  proved,  provided  such  proof  is 
presented  subsequently. 

5.  Id.  :   Res  Gestae.     Such  declarations  may  sometimes  be  admitted 

as  part  of  the  res  gestae. 

6.  Id.  :  Impeachment.      Evidence  offered  by  the  government  of  prior, 

extraforensic  statements  by  one  of  its  witnesses  inconsistent 
with  his   testimony,   admitted  by  way  of  impeachment. 

7.  Id.  :    The   possessor,   even   constructively,   of   stolen    property,   has 

the   burden   of  showing  that  his   possession   is   innocent. 

8.  Id.  :   The  failure  to  produce,  or  explain  the  nonproduction  of  doc- 

umentary evidence  raises  the  presumption  that  it  would  be 
adverse. 

Major  Arthur  Basset,  U.  S.  A.,  Special  U.  S.  Dist.  Atty., 
for  the  prosecution. 

Harry  A.  Lucker,  Esq.,  for  the  defense. 

LOBINGIER,  J.: 

The  information  in  this  cause  charges  that  the  defend- 
ants 

"on  or  about  the  27th  day  of  June,  1918,  falsely,  unlawfully  and 
wickedly,  did  conspire,  combine,  confederate  and  agree  together  with 
Robert  E.  Marlowe,  J.  T.  Jespersen,  and  other  parties  whose 
names  are  unknown,  to  defraud  the  United  States  of  America,  and 
in  pursuance  of  the  same  conspiracy,  combination,  confederacy  and 
agreeing  together  with  intent  to  defraud  the  United  States  of  Am- 
erica, did  take,  carry  away  and  appropriate  to  their  own  use  seventy- 
five  pairs  of  shoes  of  the  value  of  three  hundred  and  thirty-seven 
dollars  and  fifty  cents,  United  States  currency,  the  property  of 
the  United  States  of  America  which  had  been  intrusted  by  the 
Quartermaster  of  the  China  Expedition,  United  States  Army,  to 
Robert  E.  Marlowe,  Regimental  Supply  Sergeant,  Fifteenth  In- 
fantry, United  States  Army,  at  Tientsin,  China,  for  issue  to  the 
organizations  of  the  Fifteenth  Infantry,  United  States  Army." 

The  prosecution  is  brought  under  the  following  pro- 
vision : 

"If  two  or  more  persons  conspire  either  to  commit  any  offense 
against  the  United  States,  or  to  defraud  the  United  States  in  any 
manner  or  for  any  purpose,  and  one  or  more  of  such  parties  do  any 
act  to  effect  the  object  of  the  conspiracy,  each  of  the  parties  to  such 


792  I  EXTRATERRITORIAL  CASES. 

conspiracy   shall   be  fined   not  more  than  ten  thousand   dollars,  or 
imprisoned  not  more  than  two  years,  or  both."  ^ 

The  undisputed  testimony  shows  that  the  Sergeant 
Marlowe,  mentioned  in  the  information',  received  from 
the  Quartermaster's  department  (p.  31)  on  June  28,  1918, 
112  pairs  of  army  shoes  of  which  he  later  invoiced  37.  The 
remaining  75  pairs  were  packed  in  two  boxes  and  at  the 
request  of  Sergeant  Marlowe  (p.  2)  loaded  on  the  army 
motor  truck  and  conveyed  to  what  is  known  as  the  "No. 
1  Compound"  of  the  China-American  Trading  Company's 
Engineering  Department,  of  which  defendant  Leonhardt 
was  in  charge  and  was  the  only  foreigner  (American)  in  the 
compound  (p.  49).  While  en  route  Sergeant  Marlowe 
stated  (p.  4)  that  they  were  being  taken  to  defendant  Leon- 
hardt for  repair.  This  remark  was  admitted  as  part  of  the 
res  gestae  -  tho  it  was  also  admissible  on  the  principle  dis- 
cussed in  part  II  hereof. 

Upon  arrival  at  the  compound  Sergeant  Marlowe  alighted 
and  entered  the  office,  which  was  that  of  defendant  Leon- 
hardt (p.  45) ,  while  the  boxes  were  unloaded  by  two  coolies 
who  were  already  there  (pp.  5,  6,  8)  and  who,  defendant 
Leonhardt  does  not  deny,  when  given  the  opportunity  (p. 
48),  were  under  his  control. 

Up  to  this  point  the  testimony,  as  we  have  said,  is  un- 
disputed; here,  it  first  diverges.  The  two  men  who  were 
on  the  truck  with  Marlowe  testify  that  he  entered  the  office 
and  conversed  with  defendant  Leonhardt.  The  latter  denies 
this  tho  he  admits  (p.  45)  that  he  was  in  the  office  during 
the  day  and  that  he  did  see  Marlowe  the  same  evening.  On 
the  other  hand  the  mail  orderly,  who  was  on  the  truck, 
positively  identifies  (pp.  8,  9,  10)  defendant  Leonhardt  as 
the  one  who  conversed  with  Marlowe,  while  the  truck  driver 
(pp.  3,  6)  reiterates  that  "it  appeared  to  be  Mr.  Leonhardt." 
The  opportunities  of  these  two  men  for  observation  seem 
to  have  been  good.  They  were  not  over  thirty  or  forty 
feet  from  the  office  (p.  6)  ;  it  was  a  hot  summer  day  (as 
the  writer  has  reason  to  remember,  the  court  being  in 

^  Federal  Penal  Code,  sec.  37, 

^  St.  Clair  v.  U.  S.,  154  U.  S.  134,  38  L.  ed.  936;  Keliher  v.  U.  S., 
193  Fed.   8,   18. 


U.  S.  V.  LEONHARDT  ET  AL.,  OCT.  7,  1918.  793 

session  in  Tientsin  at  the  time)  and  naturally  the  doors  and 
windows  were  open;  and  a  few  days  later,  defendant 
Leonhardt  states  (pp.  51,  52) ,  he  was  able  to  see  the  same 
vehicle  when  it  drove  in  tho  he  was  two  rooms  back  from 
the  office. 

The  testimony  thus  being  sharply  conflicting  on  one  point 
the  statements  of  the  two  men  that  they  saw  Marlowe  con- 
versing with  Leonhardt  preponderates  over  the  latter's 
denial  unless  sufficient  reason  is  shown  for  rejecting  said 
statements.  But  no  such  reason  is  suggested.  These  two 
men  so  far  as  appears  are  absolutely  disinterested,  while 
Leonhardt  is  one  of  the  accused. 

Moreover,  without  resolving  such  conflict,  the  testimony 
seems  to  show  at  least  a  constructive  delivery  of  the  boxes 
to  Leonhardt.  As  we  have  seen  he  "was  in  charge  of  the 
Engineering  Department"  (p.  49)  ;  he  was  "the  only 
foreigner  (non-Chinese)  in  the  compound"  (p.  49)  ;  and 
there  had  been  at  least  one  previous  delivery  there  from 
the  Quartermaster's  Department  (p.  49).  Now,  it  is  an 
elementary  rule  of  evidence  that  the  possession  of  stolen 
goods  places  upon  the  possessor  the  burden  of  explanation 
and  of  showing  that  his  possession  is  innocent  ^  and  the  rule 
applies  where  the  possession  is  only  constructive.  *  Here 
defendant  Leonhardt  does  not  deny  the  delivery  within  the 
compound,  of  which  he  was  in  charge,  and  in  front  of  his 
office,  of  the  two  boxes  of  stolen  shoes.  He  merely  says 
(p.  43)  that  if  they  were  unloaded  there  it  must  have  been 
without  his  knowledge.  This  cannot  be  accepted  as  a  suf- 
ficient explanation  nor  as  meeting  the  burden  which  the 
law  places  upon  him.  Either  the  boxes  were  delivered  to 
him  or  they  were  not  and  the  fact  of  delivery  is  undisputed. 
If  they  were  delivered,  as  he  claims,  without  authority,  the 
natural  course  for  him  would  have  been  to  notify  the  mili- 
tary authorities  at  once  and  cause  the  removal  of  the  boxes. 
But  no  such  course  was  taken.  And  when,  in  addition,  two 
disinterested  witnesses  testify  that  immediately  following 
the  unloading  of  the  boxes  the  man  who  had  caused  their 
unlawful  abstraction  from  the  Quartermaster's  Department 

^  Wigmore,  Evidence,  I,  sec.   152. 
*  U.  S.  V.  Simbahan,  19  Phil.  123. 


794  I  EXTRATERRITORIAL  CASES. 

was  seen  conversing  with  defendant  Leonhardt,  the  pre- 
sumption against  him  seems  very  strong. 

II. 

Sergeant  Page,  the  storekeeper,  who  delivered  the  shoes 
to  Marlowe  (p.  14),  testifies  that  the  latter 

"came  to  me  next  morning  as  I  was  coming  into  the  compound  to 
work  and  asked  if  Mr.  Leonhardt  had  seen  me  and  I  told  him,  No, 
he  had  not.  And  he  says  that  we  got  a  deal  on  up  in  Siberia  some- 
where to  get  away  with  some  shoes.  I  don't  know  who  he  meant 
by  'we' — I  don't  know  who  'we'  were — and  he  said  he  thought  we 
could  make  two  or  three  hundred  dollars  apiece  on  it  and  gave 
me  a  kind  of  an  opening  for  me  to  say  that  I  would  go  in  on  the 
deal."     (p.  17.) 

This  was  admissible  as  the  declaration  of  a  co-conspirator. 
For 

"any  declaration  made  by  one  of  the  parties  during  the  pendency 
of  the  illegal  enterprise  is  not  only  evidence  against  himself,  but 
is  evidence  against  the  other  parties,  who,  when  the  combination 
is  pt'oved,  are  as  much  responsible  for  such  declarations  and  the 
acts  to  which  they  relate  as  if  made  and  committed  by  themselves."  * 

Of  course  such  declaration  cannot  be  considered  as  the 
basis  of  a  finding  unless  the  conspiracy  itself  has  been 
proven.  But  it  is  not  necessary  to  wait  until  "the  combi- 
nation has  been  proved"  fully  before  admitting  the  declara- 
tions.    For 

"according  to  the  great  weight  of  authority  the  order  in  which 
the  testimony  shall  be  received  is  largely  in  the  discretion  of  the 
trial  court.  If  the  circumstances  of  the  case  are  so  peculiar  and 
urgent  as  to  require  it,  the  acts  and  declarations  of  a  conspirator 
may  be  introduced  in  the  first  instance  before  proof  of  the  agree- 
ment. *  *  *  On  account  of  the  difficulty  in  proving  conspiracy 
and  bringing  the  guilty  to  justice  there  is  no  class  of  cases  in  which 
it  is  more  important  that  the  trial  judge  should  have  a  large  dis- 
cretion as  to  the  order  in  which  evidence  should  be  received  and 
this  discretion  cannot  be  reviewed  on  error  except  in  clear  cases 
of  abuse."  • 

This  rule  is  followed  in  the  Federal  courts  ^  and  conse- 
quently in  jury  trials.  ^ 

'  Morrow,  J.,  charging  the  jury  in  U.  S.  v.  Cassidy,  67  Fed.,  698,  703. 
"  8  Cyc,  682. 

'Taylor  v.  U.  S.,  89  Fed.,  954;  Drake  v.  Stewart,  76  Fed.,  140. 
'  State  V.  Lewis,  51  Or.,  467,  94  Pac,  831. 


U.  S.  V.  LEONHARDT  ET  AL.,  OCT.  7,  1918.  795 

Shortly  afterwards  Marlowe  was  ordered  to  the  target 
range  at  Leichuang  from  which  place  he  wrote  a  personal 
letter  to  defendant  Leonhardt  enclosing  it  in  another  letter 
to  Sergeant  Mitchell  which  the  latter,  after  reading  it,  de- 
livered to  defendant  Leonhardt  by  placing  it  on  his  desk 
(p.  28) .  This  letter,  it  is  admitted  (p.  47) ,  asked  Leonhardt 
for  a  loan  of  $10  and,  according  to  Mitchell's  testimony 
at  the  trial  (p.  30)  referring  to  one  J.  T.  Jespersen  (men- 
tioned in  the  information  as  a  co-conspirator) ,  "wanted  to 
know  how  he  was  getting  along."  Two  army  officers, 
Colonel  Smart  (p.  37)  and  Major  Bassett  (p.  39),  testify 
that  Mitchell  had  previously  told  them  that  Marlowe  had 
asked  Leonhardt  in  the  letter  to  see  Jespersen  and  ascer- 
tain "if  he  had  finished  that  deal  yet"  (p.  37)  or  "if  the 
deal  had  been  put  thru"  (p.  39).  This  testimony  was 
admitted  by  way  of  impeachment  ^  after  the  point  had  been 
called  to  Mitchell's  attention  as  a  witness  and  he  had  denied 
having  made  such  a  statement  (pp.  29,  30,  31).  Defendant 
Leonhardt  contradicted  all  of  these  witnesses  by  declaring 
(p.  47)  that  "Jespersen's  name  so  far  as  I  know  was  not 
mentioned  at  all."  But  he  failed  to  produce  the  letter  when 
called  upon  to  do  so  (p.  29)  and  the  only  explanation  offered 
was  that  "it  has  presumably  been  destroyed"  (p.  29)  altho 
as  the  trial  occurred  on  September  2  the  letter  had  then 
been  received  not  so  long  before  and  the  investigation  of 
the  affair  had  rendered  it  of  considerable  importance. 
Nevertheless,  he  does  not  even  suggest  that  he  had  searched 
for  it.  Under  these  circumstances  the  rule  that  a  document 
not  produced  must  be  presum.ed  to  be  adverse  to  the  pos- 
sessor "  would  seem  applicable. 

in. 

The  next  we  hear  of  the  shoes  they  are  found  in  the 
custom  house  at  Tientsin  en  route  to  Kalgan  and  addressed 
to  the  "Mongolian  Trading  Company,"  having  been  for- 
warded by  the  J.  T.  Jespersen  already  mentioned  (pp.  35, 
36,  37).     They  were  exactly  the  same  number   (75  pairs) 

'Wigmore,  Evidence,  II,  sec.  907;  Swift  &  Co.  v.  Short,  92  Fed., 
567,  570. 

"  See  Sy  Joe  Lieng  v.  Sy  Quia,  16  Phil.,  137,  161.  Cf.  Kirby  v. 
Tallmadge,  160  U.  S.,  379,  40  L.  ed.,  463. 


796  I  EXTRATERRITORIAL  CASES. 

of  government  shoes  and  were  tied  together  in  pairs  in 
the  same  manner  as  when  they  left  the  Quartermaster's 
Department  (pp.  22,  23).  Jespersen  indeed  testifies  (p. 
40)  that  he  .bought  these  shoes  "from  time  to  time  from 
people  who  come  to  my  back  door"  but  he  does  not  explain 
how  he  happened  to  get  exactly  75  pairs  of  new  army  shoes 
tied  together  in  precisely  the  same  way  as  those  which 
Marlowe  took  from  the  Quartermaster's  Depot.  Jespersen 
came  to  the  trial  as  a  witness  on  behalf  of  the  accused  with 
whom  he  appears  to  have  been  closely  connected.  The 
fact  that  he  was  afterward  called  by  the  Government  to 
prove  that  he  had  shipped  the  shoes  (because  defendants' 
counsel  stated  that  he  would  object  to  the  admission  of  the 
shipping  papers  from  the  railway  company)  does  not  render 
any  more  credible  to  us  Jespersen's  testimony  on  cross- 
examination  by  defendants'  counsel  as  to  where  he  procured 
them. 

The  manager  (Mr.  Coltman)  of  the  Mongolian  Trading 
Company,  to  which  the  shoes  had  been  shipped,  was  beyond 
the  reach  of  a  subpoena  at  the  time  of  the  trial  and  to 
avoid  the  necessity  of  postponement  on  that  ground  counsel 
on  both  sides  agreed  that  a  letter  (Ex.  ''A")  from  him  to 
the  Prosecuting  Attorney  and  various  correspondence  (Ex. 
"A-1"  to  "A-13")  should  be  received  in  evidence  with  the 
admission  "that  were  Mr.  Coltman  here,  he  would  testify 
according  to  the  tenor  of  the  prosecution's  Ex.  "A"  (p.  42). 
The  correspondence  would  probably  have  been  admissible 
without  the  stipulation  ^^  but  under  this  admission  the 
letters  may  be  considered  in  the  same  way  as  if  they  had 
been  regularly  identified  by  their  respective  authors.  Mr. 
Coltman's  letter  to  the  Prosecuting  Attorney  setting  forth 
his  transactions  with  defendant  Terry  and  Jespersen  reads 
as  follows: 

"When  I  was  in  Peking  in  June,  when  stopping  my  car  at  the  China 
Amei'ican  Trading  Co.  for  gasoline,  Mr.  Terry  of  that  firm  asked  me  if 
I  should  be  able  to  sell  shoes  in  the  north  and  in  reply  to  the  ques- 
tions of  kind  and  price  he  stated  that  a  friend  of  his  in  Tientsin  had 


"  Clune  V.  U.  S.,  159  U.  S.,  590,  40  L.  ed.,  269;  Erber  v.  U.  S.,  234 
Fed.,  221. 


U.  S.  V.  LEONHARDT  ET  AL.,  OCT.  7,  1918.  797 

75  pair  of  Amer.  Army  style  shoes  which  he  could  ship  me  to  Kalgan 
for  $6  per  pair  and  I  told  him  to  ship  them  up  and  I  would  see 
what  I  could  get  for  them  in  Urga,  as  at  the  present  time  there 
is  a  good  demand  for  shoes  and  boots  in  Urga  and  along  the  Siberian 
border.  Desiring  to  make  a  larger  shipment  in  the  same  line  we 
wi'ote  the  firm  of  J.  T.  Jespersen,  whom  we  had  been  informed  had 
been  supplying  various  Russian  firms  in  Urga  with  boots,  requesting 
from  him  samples,  and  on  July  13th  received  a  note  from  him  as  to 
shipment  of  75  prs.  boots  mentioned  by  Mr.  Terry.  The  further  cor- 
respondence with  this  party  you  will  find  self  explanatory." 

Defendant  Terry,  testifying  in  his  own  behalf  (p.  54 
et  seq.),  practically  corroborates  this  recital  and  says  in 
reply  to  the  question — 

"This  letter  shows  that  this  shipment  was  made  under  the  arrange- 
ment made  by  you? 

"A.  I  haven't  denied  that"    (p.  61). 

He  further  admits — 

"I  wrote  a  letter  to  Jespersen  that  Mr.  Coltman  would  take  his 
shoes  and  to  ship  to  Mongolia  at  six  pesos  a  pair  "  (p.  61). 

On  July  10  Jespersen  wrote  Mr.  Coltman  "I  am  sending 
you  75  pairs  boots  as  agreed  with  Mr.  Terry"  (Ex.  A-3). 

The  Mongolian  Trading  Company  replied  on  July  19 
stating  that  they  had  not  yet  received  the  "75  pairs  of  boots 
following  the  agreement  with  Mr.  Terry"  (Ex.  "A-4")  and 
on  July  28  another  letter  (Ex.  "A-11")  was  sent  to 
Jespersen  with  the  same  complaint.  Of  course,  Mr.  Colt- 
man was  unaware  at  this  time  that  the  shoes  had  been  seized 
by  the  customs  authorities. 

There  seems  to  be  no  reasonable  doubt,  therefore,  that 
defendant  Terry  was  the  intermediary  between  Jespersen, 
the  possessor  of  the  stolen  shoes  after  they  had  left  the 
compound  of  which  defendant  Leonhardt  was  in  charge,  and 
a  prospective  purchaser.  Defendant  Terry,  as  we  have 
seen,  does  not  deny  his  connection  with  the  affair;  the 
most  that  he  claims  is  that  he  was  ignorant  of  its  criminal 
character.  Here  again  the  burden  would  seem  to  rest  upon 
him  to  offer  a  reasonable  and  satisfactory  explanation.  His 
explanation  is  (p.  53)  that  he  first  met  Jespersen  "some  time 
in  June"  (necessarily  after  the  28th  when  the  shoes  had 
been  taken)   at  the  bar  of  the  "Imperial  Hotel"  which  he 


798  I  EXTRATERRITORIAL  CASES. 

reached  about  8.15  in  the  evening  and,  to  quote  his  account 
(p.  58)  of  this  first  meeting: 

"Mr.  Jespersen  says  'where  are  you  from'  and  I  says  'from  Peking* 
and  he  says  *I  am  a  merchant  here.  Do  you  know  anybody  up  your 
way  that  would  like  to  buy  some  shoes?'  and  I  says  'what  kind  of 
shoes?'     He  says  'men's  shoes'  and  I  says  'I  \vi\\  look  around.'  " 

This  he  declares  (p.  45)  was  his  only  interview  with 
Jespersen  and  as  he  left  the  hotel  "about  a  quarter  of  nine" 
(p.  57)  his  entire  stay  there  did  not  exceed  thirty  minutes 
during  which  time  he  first  became  acquainted  with  Jespersen 
"shook  for  drinks  or  cigars"  (p.  57)  and  effected  the  ar- 
rangement which  he  does  not  deny  having  made.  Yet  that 
arrangement  must  have  included  many  more  details  than 
he  recounts,  for  according  to  Mr.  Coltman's  letter  (Ex. 
"A"),  which  Terry  does  not  deny,  the  latter  told  the  former 
"that  a  friend  (indicating  more  than  a  half -hour's  acquaint- 
ance) of  his  in  Tientsin  had  75  pairs  of  American  army 
style  shoes  which  he  could  ship  me  to  Kalgan  for  $6  per 
pair."  Moreover,  Jespersen  in  his  first  letter  refers,  as 
we  have  seen,  to  "75  pairs  boots  as  agreed  with  Mr.  Terry." 
When  asked  on  cross-examination  (p.  61)  "But  both  Mr. 
Coltman  and  Mr.  Jespersen  in  their  letters  stated  75  pairs 
shoes  as  arranged  by  Mr.  Terry.  How  does  that  happen  ?" 
he  repHed  "I  don't  know,  sir." 

In  other  words,  he  was  unable  to  give  any  satisfactory 
explanation  of  the  source  of  his  knowledge  as  to  the  number, 
quality,  and  price  of  the  shoes  offered  by  Jespersen  if  the 
arrangement  with  the  latter  had  been  merely  such  as  Terry 
claims.  Moreover,  his  course  during  the  period  when  the 
investigation  of  this  affair  first  began  was  not  that  of  a 
man  who  had  been  innocently  misled  into  a  connection  with 
a  criminal  transaction.  Defendant  Terry  admits  (p.  60) 
that  he  is  an  ex-soldier  and  knows  the  penalty  for  dealing 
in  military  equipment;  also  that  he  was  interviewed  by 
Major  Drysdale  in  Peking  (p.  58)  who  was  investigating 
this  affair.  Part  of  the  cross-examination  on  this  point 
is  as  follows: 

"Q.  Now,  Mr.  Terry,  why  didn't  you  explain  to  Major  Drysdale 
then  what  your  connection  with  Mr.  Coltman  and  Mr.  Jespersen  had 
been? 


U.  S.  V.  LEONHARDT  ET  AL.,  OCT.  7,  1918.  799 

"A.  Well,  I  had  heard  of  this  army  scandal  about  United  States 
army  shoes  in  Tientsin,  and  I  didn't  want  to  be  mixed  in  with  it. 
"Q.  Wanted  to  conceal  your  connection  with  it? 
"A.  Wanted  to  conceal  my  connection  with  any  U.  S.  Army  shoes." 
(p.  59.) 

It  also  appears  (p.  62)  that  he  was  given  an  opportunity 
to  explain  his  connection  with  the  affair  to  the  Judge 
Advocate,  the  present  Special  Prosecuting  Attorney,  and 
declined  to  do  so.  Yet  if,  as  he  now  claims,  defendant 
Terry  was  the  innocent  victim  of  a  conspiracy  of  others  his 
first  act  would  normally  have  been  to  have  made  a  clean 
breast  of  his  entire  connection  with  the  matter  and  asserted 
his  innocence  then  and  there. 

IV. 

More  than  most  offenses  conspiracy  may  be  established 
by  circumstantial  evidence. 

"While  men  sometimes  have  a  prejudice  against  this  class  of 
evidence,  Judge  Dillon  said,  in  a  case  he  tried  while  he  was  on  the 
circuit  bench  of  Iowa,  that  altho  this  was  one  of  the  resorts  of 
lawyers  to  make  a  hobgoblin,  to  frighten  jurymen  into  a  prejudice 
against  this  class  of  evidence,  yet  circTimstantial  evidence  was  one 
of  the  most  important  classes."  " 

Moreover, 

"In  the  reception  of  circumstantial  evidence  great  latitude  must  be 
allowed.  The  jury  should  have  before  them,  and  are  entitled  to  con- 
sider, every  fact  which  has  a  bearing  on,  and  a  tendency  to  prove, 
the  ultimate  fact  in  issue  and  which  will  enable  them  to  come  to  a 
satisfactory  conclusion.  The  government  has  the  right  to  show  the 
whole  history  of  the  conspiracy  from  its  commencement  to  its  con- 
clusion." " 

Again, 

"As  has  been  often  remarked,  it  is  not  necessary  that  direct  evi- 
dence of  a  formal  agreement  should  be  given  in  such  cases.  If  the 
evidence  of  the  separate  details  of  the  transaction  as  it  was  carried 
out  indicates  with  the  requisite  certainty  the  existence  of  a  precon- 
certed plan  and  purpose,  that  is  sufficient." " 

"  Parker,  J.  (charging  the  jury) ,  in  U.  S.  v.  Howell,  56  Fed.,  21,  35. 
"^  Corpus  Juris,  XII,  634. 

"  Reilley  v.  U.  S.,  106  Fed.,  896,  905.  Cf .  Davis  v.  U.  S.,  107  Fed., 
753. 


800  I  EXTRATERRITORIAL  CASES. 

Here  the  parties  charged  with  conspiracy  are  all  mutually 
acquainted.  Leonhardt  (p.  43),  Terry  (p.  60),  who  are 
ex-soldiers,  and  Jespersen  (p.  40)  all  admit  knowing  Ser- 
geant Marlowe  who,  like  the  two  former  (pp.  45,  60)  was 
a  member  (p.  45)  of  the  Spanish-American  War  Veterans 
Club  in  Tientsin  which  all  of  them  frequented  (pp.  25,  46, 
47,  52,  57).  Terry  admits  (p.  56)  that  he  was  "very 
friendly  with  Mr.  Leonhardt"  while  the  latter 's  relations 
with  Marlowe  are  shown  by  Leonhardt's  admission  that 
Marlowe  had  frequently  borrowed  money  of  him  (p.  48) 
and  wrote  him  a  personal  letter  after  going  to  Leichuang, 
while  Leonhardt  was  a  witness  in  Marlowe's  behalf  at  the 
latter's  trial  (p.  50).  The  testimony  of  the  two  witnesses 
already  referred  to,  that  Marlowe  conversed  with  Leonhardt 
at  the  time  of  the  delivery  of  the  shoes  at  the  compound, 
seems  to  complete  the  connection  between  these  two. 

"It  would  not,  in  such  a  case,  be  necessary  to  show  that  the  parties 
had  any  previous  acquaintance,  or,  with  the  exception  of  Rogers, 
knew  of  the  exact  part  the  other  was  to  perform.  In  such  a  case, 
each  might  be  considered  a  co-conspirator  with  Rogers,  and  being 
so,  would  be  responsible  for  his  acts  in  carrying  out  the  illegal  pur- 
poses." " 

Here,  therefore,  it  would  not  be  necessary  for  each  of  the 
two  accused  to  know  "the  exact  part"  performed  by  the 
other  in  this  affair;  but  in  view  of  their  admitted  "very 
friendly"  relations  we  think  there  is  little  doubt  but  that 
each  did  know.  Each  at  any  rate  appears  to  have  been 
interested  in  the  shoes  and  they  were  the  connecting  link  not 
only  between  the  accused  but  between  them  and  the  others 
mentioned  in  the  information. 

The  overt  act  which,  as  is  contended  by  defendants' 
counsel,  must  appear,  is  found  in  the  negotiations  conducted 
by  defendant  Terry  as  well  as  in  the  original  abstraction 
by  Sergeant  Marlowe.  For  it  is  not  necessary  that  more 
than  one  of  the  conspirators  commit  the  overt  act.^" 

On  the  whole,  the  evidence  in  this  case  appears  to  us 
quite  as  strong  and  sufficient  as  that  in  other  reported 

'°  U.  S.  V.  Rindskopf ,  6  Biss.  259,  27  Fed.  Cas.  813,  814. 
"Id. 


FORD  V.  MACDONELL-CHOW  CORP.,  OCT.  31,  1918.       801 

cases  '^  where  defendants  have  been  convicted  of  the  crime 
here  charged  and  we  find  it  sufficient  to  require  a  convic- 
tion in  this  case. 

We  accordingly  find  each  of  the  defendants  guilty  of  the 
crime  of  conspiracy  as  charged  in  the  information  and  each 
is  hereby  sentenced  to  a  term  of  imprisonment  for  one 
year  to  be  served  in  Bilibid  Prison,  Manila,  Territory  of 
the  Philippines,  unless  transferred  to  some  other  place 
of  confinement,  and  to  pay  a  fine  of  one  thousand  dollars, 
United  States  currency,  with  subsidiary  imprisonment  there 
according  to  law  in  case  of  insolvency,  and  to  pay  one-half 
the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

H.  Leslie  Ford,  Plaintiff,  v.  Macdonell-Chow  Corpora- 
tion, Defendant. 

[Cause  No.  690;  filed  October  31,  1918.] 

SYLLABUS. 
(By  the  Court,)  * 

1.  CONTRACTS:    INTERPRETATION.     The    rule    of    contra    preferentem 

applied. 

2.  Id.  :   Employment  :  The  Burden  of  Proving  insubordination  jus- 

tifying an  employee's  discharge  rests  upon  the  employer. 

3.  Id.:   Id.:   Damages.     After  discharge,  tho  wrongful,  the  employee 

must  seek  other  employment  and  accept  it  if  similar  and  any 
amount  earned,  or  which  might  with  due  diligence  have  been 
earned,  thereby  must  be  applied  in  mitigation  of  his  damages. 

4.  Id.  :  Id.  :  The  Burden  op  Proving  justification  for  the  failure  to 

accept  such  employment  rests  upon  the  employee. 

5.  Id.:    Id.:    An   obligation   "to   pay  the   travelling   expenses"  of   an 

employee  in  returning  home  is  not  discharged  merely  by  re- 
serving passage  or  offering  to  provide  it  within  a  limited  time; 
nor  on  the  other  hand  is  the  employee  entitled  to  such  expenses 
except  in  case  he  actually  returns  home. 

Alexander  Krisel,  Esq.,  for  plaintiff. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  defendant. 

"Taylor  v.  U.  S.,  89  Fed.,  954;  U.  S.  v.  Scott,  139  Fed.,  697;  Smith 
V.  U.  S.,  157  Fed.,  721;  Heike  v.  U.  S.,  192  Fed.,  83. 

14008  O.  W.- 


8Q2  I  EXTRATERRITORIAL  CASES. 

LOBINGIER,  J.: 

This  is  an  action  on  a  contract  drawn  by  defendant's 
attorney  and  director  and  executed  in  New  York  on  Feb- 
ruary 28,  1918,  under  which  plaintiff  entered  into  the 
defendant's  employ.     Clause  4  provides  that: 

"The  said  Ford  shall  receive  for  his  services  and  the  corporation 
agrees  to  pay  to  him  the  sum  of  at  least  Fifty  ($50)  Dollars  per 
week  (payable  weekly)  during  the  continuance  of  his  employment. 
But  it  is  understood  that  the  salary  of  the  said  Ford  may  hereafter 
be  increased,  if  the  services  rendered  by  him  warrant  an  increase; 
such  increase  to  be  arranged  and  agreed  to  for  the  corporation  by 
the  President." 

Plaintiff,  after  alleging  his  arrival  in  Shanghai  on  March 
31,  further  avers: 

"That  thereafter  and  on  or  about  the  13th  day  of  April,  1918,  the 
defendant  corporation  thru  its  president  and  manager  at  Shanghai, 
China,  increased  the  salary  of  the  plaintiff  to  the  sum  of  Taels  Three 
Hundred  per  month,  payable  monthly." 

To  this  averment  the  answer 

"admits  that  thru  its  president  and  manager  at  Shanghai  it 
increased  the  salary  of  the  plaintiff  but  alleges  that  such  increase 
was  only  temporary  and  upon  the  agreement  and  understanding  that 
it  should  be  terminated  at  any  time  thereafter  at  the  option  of  the 
said  president  and  manager." 

Defendant's  only  witness  in  support  of  its  affirmative 
allegation  of  defence  following  the  admission  above  recited 
is  its  president  and  manager  and  he  does  not  testify  to 
any  "agreement  and  understanding"  with  plaintiff  that  the 
increase  should  be  terminated  at  the  former's  option.  He 
says,  indeed,  that  he  stated  he  "would  temporarily  grant 
him  (plaintiff)  an  advance  pending  future  developments" 
but  he  does  not  claim  that  plaintiff  "agreed"  that  this  ad- 
vance should  be  only  temporary.  Moreover,  on  the  same 
date  as  that  alleged  in  the  answer  as  the  occasion  of  the 
increase,  the  president  and  manager  wrote  to  the  home 
office  as  follows : 

"Mr.  Ford,  on  his  arrival  here,  has  found  the  cost  of  living 
greatly  in  excess  of  what  he  had  previously  understood  they  would 
be.  In  consequence,  I  have  had  to  make  a  temporary  readjustment 
of  his  salary,  which  I  beg  to  refer  to  you  for  continuation." 


FORD  V.  MACDONELL-CHOW  CORP.,  OCT.  31,  1918.        803 

Here,  while  speaking  of  the  readjustment  as  "temporary," 
he  does  not  indicate  any  agreement  or  understanding  with 
plaintiff  to  the  effect  that  the  same  might  be  terminated  at 
the  manager's  option. 

On  the  other  hand,  plaintiff  testifies  that  the  increase  to 
Tls.  Three  hundred  per  month  was  reached  as  the  result 
of  a  discussion  in  which  various  figures  were  named  and  . 
that  nothing  was  said  about  the  increase  being  temporary. 
It  is  conceded  also  that  the  manager  did  pay  plaintiff  the 
sum  of  Tls.  Three  hundred  for  each  of  several  months 
without  question  and  the  conditions  which  required  the 
increase  to  that  sum — principally  the  low  price  of  Amer- 
ican currency  in  which  the  minimum  salary  was  fixed — 
became  more  and  more  aggravated  as  the  employment 
continued.  Finally,  it  will  be  noticed,  that  while  the  con- 
tract authorized  the  president  and  manager  to  arrange  in 
the  corporation's  behalf  an  increase  of  plaintiff's  compen- 
sation there  is  no  provision  authorizing  him  to  decrease  it 
and  it  seems  doubtful  if  such  authority,  to  be  exercised 
without  plaintiff's  consent,  could  be  inferred. 

The  contract  was  drawn,  as  we  have  seen,  by  defendant's 
attorney  and  director  and  the  rule  of  interpretation  in  such 
cases  is  that  of  contra  preferentem,  i.  e.,  that  the  instrument 
is  to  be  construed  most  strongly  against  the  framer.^ 
Moreover,  the  burden  rests  upon  defendant  to  prove  its 
affirmative  defence  "that  such  increase  was  only  temporary 
and  upon  the  agreement  and  understanding  that  it  should 
be  terminated  at  any  time  thereafter  at  the  option  of  said 
president  and  manager."  In  the  light  of  the  whole  tes- 
timony we  are  unable  to  say  that  this  burden  has  been  met 
and  we  must  therefore  find  that  the  increase  to  Tls,  Three 
hundred  per  month  continued  until  changed  by  mutual 
agreement  or  by  other  circumstances  not  here  shown. 

II. 

The  complaint  further  alleges: 

"That  thereafter  and  on  or  about  the  31st  day  of  July,  1918,  the 
defendant    corporation,    thru    its    president    and    manager    of    the 

'Corpus  Juris,  XIII,  545;  King  Ping  Kee  v.  American  Food  Mfg. 
Company,,  ante,  p.  735. 


804  I  EXTRATERRITORIAL  CASES. 

Shanghai  office,  wrongfully  discharged  the  plaintiff  and  refused  to 
permit  him  to  serve  as  aforesaid,  tho  the  plaintiff  then  and  there 
offered  to  continue  in  said  service  and  still  offers  to  perform  all 
conditions  on  his  part  to  be  performed  under  the  said  agreement." 

The  answer  admits  (par.  4)  the  discharge  on  the  date 
mentioned  ''but  denies  that  said  discharge  was  wrongful" 
and  "alleges  that  said  plaintiff  was  discharged  for  miscon- 
duct and  insubordination."  Here  again  the  burden  of  proof 
rests  upon  defendant;  having  admitted  the  discharge  the 
justification  thereof  is  for  it  to  show.  The  particular  cause 
alleged  by  the  manager,  who  is  again  defendant's  only  wit- 
ness on  the  point,  is  the  application  to  him  of  an  offensive 
epithet  by  plaintiff.  The  latter  denies  this  and  the  testi- 
mony is  therefore  equally  balanced;  for  it  cannot  be  said 
that  one  of  these  witnesses  is  more  interested  than  the  other. 
Moreover,  it  is  conceded  that  immediately  after  the  inter- 
view at  which  the  alleged  epithet  was  applied,  the  manager 
came  to  the  plaintiff  and  asked  him  to  continue  tho  at  the 
minimum  salary.  This,  if  not  actually  inconsistent  with 
the  alleged  misconduct,  would  seem  like  a  condonation 
thereof  and — 

"If  there  has  been  an  actual  forgiveness  of  a  breach  of  contract 
on  the  part  of  a  master  to  a  defaulting  servant,  he  cannot  afterwards 
rely  upon  such  breach  in  discharging  the  servant."  ^ 

Especially  in  view  of  the  letters  from  the  home  office 
(Ex.  C.  &  E.),  praising  the  quality  of  plaintiff's  services, 
we  cannot  say  that  sufficient  cause  for  his  discharge  has 
been  shown. 

III. 

Plaintiff  testifies  that  after  his  discharge  he  sought  em- 
ployment with  other  firms,  that  he  was  finally  offered  a 
position  with  a  local  house  at  a  salary  considerably  larger 
than  he  had  been  receiving  from  defendant,  but  that  he 
voluntarily  chose  not  to  accept  it,  giving  as  the  sole  reason 
negotiations  with  defendant  for  reemployment.  The  rule 
is  that  the  amount  which  a  discharged  employee  earns,  or 

*  Dick,  J.,  charging  the  jury  in  Leatherberry  v.  Odell,  7  Fed.,  641, 
648. 


FORD  V.  MACDONELL-CHOW  CORP.,  OCT.  31,  1918.       805 

might  with  due  diligence  have  earned,  after  his  discharge 
must  be  applied  in  mitigation  of  his  damages.^ 

Whether  the  negotiations  referred  to  justified  plaintiff  in 
failing  to  accept  this  new  position  is  not  clear;  for  both 
parties  have  treated  them  as  privileged,  the  details  are 
not  in  evidence,  and  it  does  not  even  appear  when  they 
terminated.  A  cable  (Ex.  F)  from  defendant's  home  office 
appears  to  have  been  received  on  Aug.  14  advising  plaintiff 
to  "do  nothing  further;  await  our  instructions."  But  a 
letter  of  the  same  date  (Ex.  6)  from  defendant's  attorneys 
announced  that  "under  no  circumstances  will  they  make 
any  further  offer,  or  consider  the  reemployment  of  Mr. 
Ford  in  the  Shanghai  office."  At  that  time,  it  is  undisputed, 
he  could  have  taken  the  new  position  and  any  delay  would 
seem  to  have  been  at  his  risk.  Moreover,  there  is  no 
evidence  that  the  offer  has  ever  been  withdrawn.  For 
while  plaintiff  states  that  he  "was  told  that  the  position 
had  been  filled"  the  department  manager  of  the  firm  which 
made  the  offer,  testifies  that  it  still  remains  open  so  far  as 
he  is  concerned,  and  that  his  "wishes  very  much  control." 
Upon  the  evidence  before  us  we  are  unable  to  find  that 
plaintiff  was  justified  in  not  accepting  the  offer,  at  least 
before  the  complaint  was  filed. 

It  is  true  that  defendant  does  not  set  up  this  defence  in 
its  answer  and  had  plaintiff  objected  to  the  admission  of 
evidence  disclosing  this  other  opportunity  of  employment 
it  would  necessarily  have  been  excluded.     But  plaintiff  not 

'26  Cyc,  1013,  note  4;  Page,  Contracts,  III,  p.  2411;  Kramer  v. 
Wolf  Cigar  Stores  Co.  99  Tex.,  597,  91  S.  W.,  775,  777;  Williams 
V.  Chicago  Coal  Co.,  60  111.,  149;  Birdsong  v.  Ellis,  62  Miss.,  418. 

"As  she  did  not  actually  perform  the  services  stipulated  in  the 
contract,  the  defendants  may  show  in  mitigation  of  damages  that 
during  the  balance  of  the  unexpired  term  she  received  other  similar 
employment,  or  might  have  received  such  emplojrment  by  proper 
efforts;  as  she  is  only  entitled  to  actual  loss  from  the  breach  of  the 
contract,  and  cannot  recover  for  loss  which  might  have  been  pre- 
vented by  reasonable  diligence.  A  discharged  servant  cannot  law- 
fully spend  the  balance  of  an  unexpired  term  of  service  in  idleness 
and  sloth,  but  must  use  reasonable  efforts  to  relieve  the  employer 
from  damage  and  loss."     Leatherberry  v.  Odell,  7  Fed.,  641,  646-7. 


806  I  EXTRATERRITORIAL  CASES. 

only  did  not  object  to  the  admission  of  such  evidence  but, 
as  already  stated,  he  himself  testified,  before  its  admission, 
of  a  search  for  other  employment  resulting  in  the  offer. 
In  such  cases  the  rule  is  that  evidence  received  without 
objection,  tho  not  strictly  admissible  under  the  pleadings, 
must  be  considered.' 

It  is  also  true  that  the  evidence  fails  to  show  the  duration 
of  the  employment  offered  by  the  new  firm  and  therefore 
should  it  cease  before  "the  expiration  of  the  first  year" 
(within  which  under  clause  3  defendant  is  entitled  to  ter- 
minate) under  the  old  contract,  plaintiff  might  still  have  a 
cause  of  action  thereon.  But  that  could  only  be  tested  by 
accepting  the  new  employment  and  seeking  in  good  faith 
to  retain  it  as  long  as  possible.  We  cannot  presume  that 
such  employment  would  cease  before  March  31,  when  the 
year  above  referred  to  ends,  nor  is  there  any  evidence  from 
which  we  could  even  conjecture  the  value  of  the  contract  in 
the  improbable  contingency  that  defendant  should  fail  to 
give  notice  of  cancellation  before  said  date.  The  sixty  days' 
notice  provided  by  said  clause  is  required  only  for  termina- 
tion at  the  end  of  the  first  year. 

We  feel  obliged,  therefore,  to  limit  plaintiff's  recovery 
of  salary  at  this  time  to  the  period  between  July  31,  the 
date  of  his  discharge,  and  September  25,  the  date  of  filing 
the  complaint,  and  necessarily  after  plaintiff  terminated  the 
negotiations  with  defendant.  At  the  amount  to  which  we 
have  found  he  was  entitled  under  his  contract,  his  total 
salary  for  this  period  would  be  Tls.  Five  hundred  and  fifty. 

IV. 

The  contract  further  provides — 

"Upon  the  expiration  in   regular  course    (or  at  any  earlier  tirae 
by  mutual  consent  of  the  parties)   of  the  term  of  employment  above 
stated,    or   of    any   extended    term    of    employment,    the    corporation ' 
agrees  to  pay  the  travelling  expenses  of  the  said  Ford  and  of  his 
wife  for  the  return  trip  to  New  York  or  any  other  point  or  place  j 
in  the  United  States." 


^Lesser  v.   Gilbert  Mfg.   Co.,  72  N.  Y.  App.   Div.,   147,  75   N.  Y.^ 
Supp.,  486. 


FORD  V.  MACDONELL-CHOW  CORP.,  OCT.  31,  1918.        807 

A  similar  privilege  is  reserved  to  plaintiff  in  case  of  can- 
cellation of  the  contract  at  the  expiration  of  one  year  or  in 
case  of  his  discharge  for  cause,  tho  in  each  of  said  cases 
there  is  a  proviso  that  plaintiff  and  his  wife  must  "leave 
the  Orient  for  the  United  States  not  more  than  thirty  days 
after  such  cancellation."  As  we  have  found  that  the  evi- 
dence is  not  sufficient  to  establish  a  discharge  for  cause  and 
as  a  year  has  not  expired  since  the  execution  of  the  contract 
neither  of  these  latter  provisions  would  seem  applicable 
and  the  one  above  quoted  must  be  applied  unless  we  are  to 
hold  that  defendant  is  able  to  escape  this  concession  by  a 
wTongful  discharge.  The  employment  has  now  been  ter- 
minated and  again  bearing  in  mind  the  contra  preferentem 
rule  we  are  of  the  opinion  that  the  paragraph  above  quoted 
includes  this  case. 

Defendant  shows  that  it  reserved  passage  for  plaintiff'  on 
a  steamer  leaving  within  forty-eight  hours  from  the  time 
of  notifying  him  and  within  which  time  he  testifies  he  was 
unable  to  leave.  It  is  also  shown  that  defendant  offered  to 
provide  transportation  for  plaintiff  during  the  balance  of 
August  but  that  no  transportation  was  available  for  that 
period.  Of  course  mere  reservation  or  offer  to  provide 
transportation  does  not  constitute  performance  of  an  agree- 
ment "to  pay  the  travelling  expenses,"  etc.  There  is  no 
claim  here  that  defendant  has  ever  paid  these  expenses  nor 
tendered  the  amount  thereof  to  plaintiff  and  without  such 
a  showing  we  do  not  consider  this  clause  of  the  contract 
performed. 

On  the  other  hand  it  is  only  the  expenses  of  "the  return 
trip"  which  defendant  undertakes  to  pay.  Plaintiff  is  not 
entitled  to  these  unless  he  actually  makes  "the  return  trip" 
and  in  view  of  the  possibilities  of  other  employment  in 
China  we  are  of  the  opinion  that  he  should  present  a  show- 
ing of  an  intention  to  return  and  evidence,  of  which  there 
is  none,  as  to  the  amount  of  such  expenses.  If  the  parties 
cannot  agree  as  to  these  items,  further  evidence  will  be 
received  in  relation  thereto. 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
have  and  recover  at  this  time  from  defendant  the  sum  of 


808  I  EXTRATERRITORIAL  CASES. 

Tls.  Five  hundred  fifty,  together  with  his  costs,  without  prej- 
udice to  future  recovery  upon  any  cause  or  causes  of  action 
hereafter  arising  from  the  contract  sued  upon. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Huang  Mien  Chow,  Plaintiff,  v.  The  Machinery  &  Metals 
Sales  Company,  Defendant. 

[Cause  No.  707;  filed  November  9,  1918.] 

SYLLABUS. 

(By  the  Court.) 

JUDGMENTS:    CONFESSION.     An   agent  upon   whom   a  summons  may 

be  served  may  confess  judgment  against  a  corporate  defendant. 

Alexander  Y.  Ting,  Esq.,  for  plaintiff. 
Nemo  contra. 

Lobingier,  J.: 

On  November  16,  1918,  plaintiff  filed  his  petition  claiming 
judgment  in  the  amount  of  Tls.  4,395.55  for  salary  and 
money  advanced  under  a  compradore  agreement  with  the 
defendant  corporation.  By  amendment  this  claim  was  later 
reduced  by  Tls.  300.  Summons  was  duly  issued  and  served 
November  18  on  defendant's  "Manager  for  China."  Two 
days  later  an  instrument  entitled  "Confession  of  Judgment," 
signed  by  the  latter,  was  filed  reading  as  follows: 

"Now  comes  the  above  named  defendant  and  confesses  judgment 
for  the  amount  of  plaintiff's  claim  as  set  forth  in  his  petition  filed 
herein." 

Subsequently  the  said  manager  presented  a  power  of 
attorney  which,  however,  is  a  general  one  containing  no 
specific  authority  to  confess  judgment.  In  the  absence  of 
such  authority  it  was  at  least  doubtful  whether  an  agent 
might  confess  judgment  for  his  principal  at  common  law.^ 

The  Court  Regulation  of  August  18,  1888,  provides  for 
the  confession  of  judgment  by  an  individual,  requiring 
his  oath  and  signature.  But  a  corporation  must  act  thru 
an  agent  and  if  we  stop  with  the  Regulation  above  referred 
to  we  must  hold  that  a  corporation  cannot  confess  judg- 
ment at  all  which  would  leave  an  undesirable  situation. 

^  Cyc,  XXIII,  701,  702. 


ERZA  V.  MERRIMAN,  NOV.   13,   1918.  809 

In  this  emergency  we  adopt  as  an  amendment  to  said 
Regulation  and  apply  the  following  statutory  provision : 

"When  the  action  is  against  a  public  *  or  a  private  corporation, 
the  confession  shall  be  made  by  the  person  who  at  the  time  sustains 
the  relation  to  such  corporation  as  would  authorize  the  service  of 
a  summons  upon  him.  In  all  other  cases  the  confession  shall  be 
made  by  the  defendant  in  person."  * 

It  may  be  added  that  if  the  instrument  entitled  "Confes- 
sion of  Judgment"  is  not  sufficient  for  that  purpose  it  is 
quite  as  inadequate  as  an  answer.  Moreover,  the  testimony 
of  defendant's  manager  has  been  taken  and  it  alone  fully 
establishes  the  validity  of  plaintiff's  claim.  No  meritorious 
defence  having  been  pleaded  and  the  time  for  answer  having 
expired  plaintiff  is  entitled  in  either  view  to  judgment. 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
have  and  recover  from  defendant  the  sum  of  Tls.  4,095.55 
together  with  his  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
JuDAH  I.  Ezra,  Plaintiff,  v.  W.  L.  Merriman,  Defendant. 

[Cause  No.  701;  filed  November  13,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  STATUTES:    APPLICABILITY:    The   doctrine    that   a   general   act   of 

Congress,  applicable  in  this  jurisdiction,  will  be  applied  in  pre- 
ference to  a  special  act,  reaffirmed. 

2.  Id.:    Id.:   Where  the  special   act  merely  supplements  the  general 

the  former  may  also  be  applied  but  only  where  the  two  are 
consistent. 

3.  Id.:    Depositions:    The   act  of   Congress   of   1789,  governing  the 

production  of  evidence,  is  a  general  act  and  may  be  applied 
in   this   jurisdiction. 

4.  PLEADING:    DEFAMATION:   The  rule  as  to  particularity  is  stricter 

in  defamation  than  in  ordinary  cases  and  the  time,  place  and 
hearer  of  the  offending  statement  must  be  set  out  if  required 
by  defendant. 

Allison  D.  Gibbs,  Esq.,  for  plaintiff. 

Messrs.  Jernigan,  Fessenden  &  Rose,  for  defendant. 

'  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large, 
369,  Ch.  786,  Tit.  II,  sec.  242. 


810  I  EXTRATERRITORIAL  CASES. 

LOBINGIER,  J.: 

The  petition  herein  was  filed  on  November  1  and  three 
days  later  plaintiff  presented  a  motion  to  have  the  de- 
fendant's deposition  taken  before  the  Court.  The  Court 
Regulations  do  not  yet  provide  for  the  taking  of  depositions 
and  this  motion  is  based  upon  a  section  of  the  Act  of 
Congress  providing  civil  laws  for  Alaska  and  authorizing 
the  taking  of  a  deposition  "at  any  time  after  the  service 
of  the  summons  *  *  *  when  the  witness  is  a  party  to 
the  action,"  etc.^  That  section  forms  part  of  the  evidence 
provisions  of  the  Alaska  Code  and  constitutes  one  of  three 
distinct  enactments  by  Congress  on  the  subject  of  taking 
depositions.  The  first  was  passed  at  the  very  foundation 
of  the  Federal  government  -  and  has  ever  since  controlled 
the  practice  of  the  federal  courts  in  such  matters.  The 
second  was  the  act  relating  to  Alaska,  above  mentioned, 
and  the  last  was  one  enacted  primarily  for  the  District  of 
Columbia.' 

In  applying  federal  statutes  in  this  jurisdiction  the 
general  have  always  prevailed  over  the  special.  As  this 
Court  said  in  a  recent  decision:^ 

"Where  a  general  act  of  Congress  *  *  *  jg  applicable  it  will 
be  applied  in  preference  to  an  act  intended  for  a  limited  locality." 

So  the  Court  of  Appeals  in  the  leading  case  ^  on  the 
subject  only  applied  the  special  acts  for  Alaska  and  the 
District  of  Columbia  after  it  had  found  that  "there  is  no 
general  statute  applicable."  Of  course  where  the  general 
act  is  deficient  or  where  the  special  act  is  merely  supple- 
mentary it  often  happens  that  both  may  be  applied.  But 
that  is  possible  only  where  there  is  no  conflict  between 
the  two,  for  in  such  a  case  the  general  act  must  necessarily 
prevail. 


'Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at 
Large,  Ch.  786,  Tit.  II,  sec.  644. 

^  Act  of  Congress  of  September  24,  1789,  1  U.  S.  Stats,  at  Large, 
Ch.  20,  p.  73   (the  Judiciary  Act). 

'Act  of  Congress  of  June  30,  1902,  Sess.  I,  32  U.  S.  Stats,  at 
Large,  Pt.  I,  p.  538   (District  of  Columbia  Code),  sec.  1058. 

*  U.  S.  V.  Diaz,  ante,  p.  784. 

'  Biddle  v.  United  States,  ante,  p.  120. 


EZRA  V.  MERRIMAN,  NOV.  13,   1918.  811 

It  is  contended  indeed  that  the  statute  here  invoked  is 
not  inconsistent  with  the  general  federal  law  governing 
the  taking  of  depositions.  But  unfortunately  for  that  con- 
tention the  Supreme  Court  has  already  decided  otherwise. 
In  a  case ''  removed  from  the  state  courts  of  New  York  to 
the  Federal  Circuit  Court  plaintiff  sought  to  invoke  a  state 
statute  similar  to,  but  less  drastic  than,  this  for  it  was 
only  intended  to  take  the  deposition  of  defendant  before 
trial  and  not  before  answer.  The  Supreme  Court  '^  in 
granting  a  writ  of  habeas  corpus  to  the  defendant,  who 
had  been  committed  for  contempt  in  failing  to  obey  the 
circuit  court's  order  to  give  his  deposition,  quoted  the 
principal  sections  of  the  general  law  above  referred  to  and 
said : 

"No  one  can  examine  these  provisions  for  procuring  testimony 
to  be  used  in  the  Courts  of  the  United  States  and  have  any  reason- 
able doubt  that,  so  far  as  they  apply,  they  were  intended  to  provide 
a  system  to  govern  the  practice,  in  that  respect,  in  those  courts. 
They  are,  in  the  first  place,  too  complete,  too  far-reaching  and  too 
minute  to  admit  of  any  other  conclusion.  But  we  have  not  only 
this  inference  from  the  character  of  the  legislation,  but  it  is  en- 
forced by  the  express  language  of  the  law  in  providing  a  defined 
mode  of  proof  in  those  courts,  and  in  specifying  the  only  exceptions 
to  that  mode  which  shall  be  admitted. 

"This  mode  is  'by  oral  testimony  and  examination  of  witnesses  in 
open  court,  except  as  hereinafter  provided.'  " 

After  noting  the  exceptions  to  this  general  practice  the 
court  continued: 

"These  are  the  exceptions  which  the  statute  provides  to  its  positive 
rule  that  the  mode  of  trial  in  actions  at  law  shall  be  by  oral  testimony 
and  examination  of  witnesses  in  open  court.  They  are  the  only 
exceptions  thereinafter  provided.  Does  the  rule  admit  of  others? 
Can  its  language  be  so  construed? 

"On  the  contrary,  its  purpose  is  clear  to  provide  a  mode  of  proof 
in  trials  at  law  to  the  exclusion  of  all  other  modes  of  proof;  and 
because  the  rigidity  of  the  rule  may,  in  some  cases,  work  a  hardship, 
it  makes  exceptions  of  such  cases  as  it  recognizes  to  be  entitled  to 
another  rule,  and  it  provides  that  rule  for  those  cases.  Under  one 
or  the  other,  all  cases  must  come.  Every  action  at  law  in  a  Court 
of  the  United  States  must  be  governed  by  the  rule,  or  by  the  exceptions 

'Ex  parte  Fisk,  113  U.  S.,  713,  28  L.  ed.,  1117.  Cf.  Carpenter  v. 
Winn,  221  U.  S.,  533,  55  L.  ed.,  842;  Zych  v.  American  Car  etc.  Co., 
127  Fed.,  723. 


812  I  EXTRATERRITORIAL  CASES. 

which  the  statute  provides.  There  is  no  place  for  exceptions  made 
by  state  statutes.  The  court  is  not  at  liberty  to  adopt  them,  or 
to  require  a  party  to  conform  to  them.  It  has  no  power  to  subject 
a  party  to  such  an  examination  as  this.  Not  only  is  no  such  power 
conferred,  but  it  is  prohibited  by  the  plain  language  and  the  equally 
plain  purpose  of  the  Acts  of  Congress,  and  especially  the  chapter  on 
Evidence  of  the  Revision." 

We  do  not  think  this  decision  any  less  pertinent  because 
the  statute  there  in  question  had  been  passed  by  a  state  leg- 
islature nor  because  the  one  here  invoked  was  enacted  after 
the  decision  was  rendered.  The  principle  announced  therein 
seems  to  us  equally  applicable  here  and  if  the  state  statute 
there  invoked  was  so  repugnant  to  the  prescribed  practice 
of  the  federal  courts  that  the  latter  could  not  apply  it  we 
must  conclude  that  they  would  be  equally  inhibited  from 
applying  the  statute  here  relied  upon  even  tho  it  is  au- 
thorized in  the  territorial  courts  of  Alaska.  In  other  words 
the  conclusion  seems  irresistibly  to  follow  that  if  an  ex- 
clusively federal  court  like  this  were  established  in  Alaska 
it  would  be  obliged  under  the  decision  above  cited  to  follow 
the  general  and  not  the  local  law  in  the  taking  of  deposi- 
tions. 

Nor  do  we  think  that  the  Act  of  1789  is  any  less  a 
general  law  because  its  provisions  for  taking  depositions 
de  bene  esse  do  not  apply  to  causes  in  the  Supreme  Court  ^ 
nor  in  foreign  countries.^  That  is  only  one  of  the  modes 
of  procuring  extra-forensic  testimony  provided  by  the  act 
(the  others  expressly  apply  in  "any  court  of  the  United 
States")"  and  it  is  in  vogue  in  all  federal  courts  of  general 
jurisdiction.  Formerly  these  included  both  district  and 
circuit  courts  but  the  latter  having  been  abolished  there 
is  now  but  one  class  of  nisi  prius  federal  tribunals,  viz., 
the  district  courts  to  which  this  Court,  as  both  nisi  prius 
and  exclusively  federal,  naturally  belongs.^"  The  original 
act  provided  that  "the  modes  of  proof     *     *     *     shall  be 

'  The  Argo,  2  Wheat,  287,  4  L.  ed.,  241 ;  Richter  v.  Jerome,  25  Fed., 
679. 

•The  Alexandra,  104  Fed.,  904;  Bird  v.  Halsey,  87  Fed.,  671. 
"U.  S.  Rev.  Stats.,  sees.  866,  867,  868. 
"/n  re  Corrigati's  Estate,  ante,  p.  717. 


EZRA  V.  MERRIMAN,  NOV.  13,  1918.  813 

the  same  in  all  courts  of  the  United  States"  ^^  and  the  act 
as  a  whole  being  still  applicable  to  all  of  such  courts  and 
the  particular  provisions  referred  to  being  applied  to  all 
trial  courts  thereof  we  think  the  act  clearly  general  as  dis- 
tinguished from  one  restricted  to  the  courts  of  a  single 
locality  like  Alaska  or  the  District  of  Columbia.  The 
inapplicability  of  said  particular  provisions  in  foreign 
countries  must  of  course  be  interpreted  here  from  the  stand- 
point of  this  Court  whose  jurisdiction  covers  the  territory 
of  China  which  is,  therefore,  not  foreign  to  it. 

Stress  is  laid  in  plaintiff's  argument  upon  the  restrictions 
of  the  general  act  as  regards  the  officers  who  may  take 
depositions  de  bene  esse.  But  in  construing  extended 
legislation  it  is  a  fundamental  rule  that  a  law  is  not  in- 
operative merely  because  officers  of  the  same  titles  are  not 
found  in  the  region  to  which  the  extension  is  proposed.  It 
is  sufficient  if  there  are  corresponding  officers  with  similar 
functions.^-  Here  the  state  officers  named  in  the  section 
referred  to  are  not  found  but  we  have  all  of  the  cor- 
responding federal  officers — Judge,  Commissioner  and 
Clerk — with  almost  literally  the  same  titles. 

We  are  convinced,  therefore,  that  the  act  of  1789  is 
general  and  may  be  applied  in  this  jurisdiction  at  least 
until  the  Judge  of  this  Court  has  exercised  his  statutory 
"authority  to  modify  and  supplement"  '=*  the  existing  pro- 
cedure by  promulgating  new  rules  for  taking  depositions. 
It  follows  that  plaintiff's  motion  must  be  overruled;  but 
we  do  not  see  that  any  real  hardship  will  result  because, 
until  defendant  has  filed  his  answer,  the  taking  of  his 
deposition  would  be  hampered  by  the  fact  that  the  issues 
have  not  been  joined  and  that  it  would  be  difficult  to  deter- 
mine what  evidence  would  be  relevant  and  what  should  be 
excluded. 

"  Act  of  Congress  of  Sept.  24,  1789,  1  U.  S.  Stats,  at  Large,  Ch. 
20,  p.  88,  sec.  30. 

"Alaska  Gold  Mining  Co.  v.  Ebner,  2  Alaska,  611;  U.  S.  ex  rel. 
Raven  v.  McRae,  ante,  p.  655. 

"  Act  of  Congi-ess  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Ch. 
3934,  sec.  5. 


g]^4  I  EXTRATERRITORIAL  CASES. 

11. 

Defendant  also  files  a  motion  asking  for  "a  bill  of  par- 
ticulars stating  the  exact  time  and  place  and  the  persons 
to  whom"  certain  statements  therein  alleged  "were  actually 
spoken  and  published."  The  rule  applicable  to  that  subject 
is  thus  stated  in  a  work  of  authority : 

"It  is  generally  held  that  defendant  is  entitled  to  know  definitely 
the  time  and  place  of  the  publication  of  the  alleged  slander  or  libel 
and  the  name  of  a  party  to  whom  publication  was  made,  and  if  the 
complaint  fails  to  show  these  particulars,  a  bill  will  be  ordered." " 

Numerous  authorities,  both  English  and  American,  are 
cited  in  support  of  this  statement  and  defendant's  counsel 
presents  additional  citations  ^^  to  the  same  effect.  Plain- 
tiff's counsel  invokes  the  following  passage  from  a  leading 
text-book  on  the  subject: 

"When  the  means  of  the  party  who  applies  for  the  bill  of  par- 
ticulars for  ascertaining  the  information  sought  are  equal  to  the 
means  of  the  adverse  party  to  furnish  it,  no  bill  of  particulars  will 
be  ordered."  " 

But  only  three  decisions  are  cited  in  support  of  this  pro- 
position, all  of  which  are  from  nisi  prius  courts,  and  the 
only  one  here  accessible  ^^  was  not  a  case  of  libel  or  slander 
at  all.  Of  course  in  other  cases  the  statement  last  quoted 
is  perfectly  correct  but  in  actions  for  defamation  the  rule 
first  stated  seems  to  prevail.  Defendant's  motion  for  a 
more  specific  statement  is  accordingly  sustained. 

Defendant  also  asks  for  an  order  extending  the  time  to 
plead  so  as  to  allow  after  the  filing  of  the  bill  of  particulars 
the  full  period  of  twenty  days  provided  by  rule  after  the 
date  of  service.  But  defendant  has  already  had  ten  days 
and  the  averments  of  which  the  bill  of  particulars  is  asked 
form  but  a  small  part  of  the  petition.  It  is  believed,  there- 
fore, that  by  allowing  ten  days  after  the  bill  of  particulars 
is  filed  defendant  will  have  ample  time. 

IT  IS  SO  ORDERED. 

"25   Cyc,  467. 

"Cole  V.  Babcock,  78  Maine,  41,  2  Atl.,  545;  Young  v.  Cook,  144 
Mass.,  39,  10  N.  E.,  719. 

"Newell,  Slander  and  Libel   (3d  ed.,  1914),  sec.  906. 

"U.  S.  V.  Tilden,  10  Ben.   (U.  S.  D.  C),  547,  28  Fed.  Cas.,  171. 


IN  RE  PETITION  OF  NARODEZKY,  NOV.    19,   1918.       §15 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

In  re  Petition  of  Paisach  Narodezky  for  Change 
OF  Name. 

[Cause  No.  697;  filed  November  19,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  NAMES:  CHANGE:  At  Common  Law  a  change  of  one's  name  might 

be  without  judicial  sanction. 

2.  Id.:  Id.:  But  Under  the  Statutes  prevailing  in  this  jurisdiction 

such  a  change  may  be  effected  only  in  a  legal  proceeding  and 
"for  sufficient  reasons  not  inconsistent  v^rith  the  public  interest 
and  satisfactory  to  the  Court." 

3.  Id.  :   Id.  :   Record  Examined  and  found  to  establish  such  reasons. 

Lobingier,  J.: 

The  petition  in  this  cause  which  is  duly  verified,  reads 
as  follows: 

"Comes  now  Paisach  Narodezky  and  shows  this  honorable  Court: 

1.  I  was  born  at  Radomis,  State  of  Kieff,  Russia,  on  the  26th  of 
December,  1892. 

2.  I  emigrated  to  the  United  States  and  landed  at  Galveston,  on 
or  about  the  7th  day  of  July,  1913.  On  the  15th  day  of  February, 
1915,  before  the  United  States  District  Court  of  the  Western  District 
of  Texas,  at  San  Antonio,  Texas,  I  renounced  my  Russian  citizenship 
and  declared  my  intention  to  become  a  citizen  of  the  United  States. 

3.  On  the  22nd  day  of  July,  1915,  I  enlisted  in  the  United  States 
Army  and  am  now  serving  as  a  private  1st  class  in  Company  M, 
15th  Infantry,  United  States  Army,  Tientsin,  China.  It  is  my  in- 
tention to  return  to  the  United  States  and  to  complete  my  naturaliza- 
tion as  a  citizen  of  the  United  States. 

4.  I  desire  to  abandon  the  use  of  the  name  Paisach  Narodezky 
and  to  adopt  and  hereafter  be  known  by  the  name  Paul   Norman. 

Wherefore,  I  pray  this  honorable  Court  to  change  my  name  from 
Paisach  Narodezky  to  that  of  Paul  Norman  and  that  henceforth  I 
be  known  as  and  be  entitled  to  use  the  name  of  Paul  Norman." 

At  common  law  judicial  sanction  was  not  required  ^  in 
order  to  effect  a  change  of  name;  but  under  the  Act  of 
Congress  of  June  6,  1900, 

"No  lawful  change  of  the  name  of  a  person,  except  a  woman  upon 
her  marriage  or  divorce,   shall  be  made   in  the  district  unless  for 

'  Cyc,  XXIX,  271. 


816  I  EXTRATERRITORIAL  CASES. 

sufficient  reasons  not  inconsistent  with  the  public  interest  and  satis- 
factory to  the  court."  ^ 

This  act  further  requires  public  notice  both  of  the  ap- 
plication and  of  the  disposition  thereof.^  The  later  Act 
of  March  3,  1901,  while  in  no  way  inconsistent  with  the 
foregoing,  is  more  elaborate.     It  provides: 

"Sec.  1298.  Any  person  of  full  age,  being  a  resident  of  the  district 
and  desirous  to  have  his  name  changed,  may  file  a  petition  in  the 
supreme  court  setting  forth  the  reasons  therefor  and  also  the  name 
desired  to  be  assumed. 

Sec.  1299.  Notice  of  the  filing  of  such  petition,  containing  the  sub- 
stance and  prayer  thereof,  shall  be  published  for  three  consecutive 
weeks  in  some  newspaper  in  general  circulation  published  in  the 
district  prior  to  the  hearing  of  the  petition. 

Sec.  1300.  The  court,  or  the  justice  holding  an  equity  term  thereof, 
on  proof  of  such  notice  and  upon  such  showing  as  may  be  deemed 
satisfactory,  may  change  the  name  of  the  applicant  according  to  the 
prayer  of  the  petition."* 

This  legislation  seems  perfectly  applicable  in  this  juris- 
diction, and  sufficient,  under  the  act  extending  here  *'the 
laws  of  the  United  States,"  to  confer  jurisdiction  on  this 
Court  as  the  one  most  nearly  corresponding  to  "the  Supreme 
Court"  mentioned  therein.^  Proof  is  presented  of  the  pub- 
lication of  a  notice  in  the  North  China  Daily  Sta7%  a  news- 
paper of  general  circulation  in  the  locality  where  the  peti- 
tioner resides,  as  required  by  the  second  section  above 
quoted.  The  petition  lacks  an  averment  "setting  forth  the 
reasons"  for  the  desired  change  but  that  appears  to  be 
supplied  by  the  petitioner  in  his  deposition,  taken  before 
the  Judge  Advocate  **  of  the  China  expedition  at  Tientsin, 
in  which  he  testifies, 

"I  applied  to  the  United  States  Court  for  China  to  change  my  name 
from  Paisach  Narodezky  to  Paul  Norman  because  it  is  my  intention 
to  complete  my  naturalization  as  an  American  citizen  and  to  reside 
in  the  United   States.     The  name  of  Paul  Norman  is  to  my  mind 

*  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  Ill,  sec.  32. 

*  Id.  sec.  33. 

*  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sees.  1298-1300. 
'Alaska  Gold  Mining  Co.  v.  Ebner,  2  Alaska,  611;   U.   S.  ex  rel. 

Raven  v.  McRae,  ante,  p.  655.     Ezra  v.  Merriman,  ante,  p.  808. 

*  Under  Articles  of  War,  114. 


IN  RE  PETITION  OF  NARODEZKY,  NOV.   19,    1918.        817 

more  American  than  my  present  name  and  is  easier  pronounced  and 
spelled  than  my  present  name  and  I  believe  it  will  be  better  for  me 
as  an  American,  residing  in  the  United  States,  to  have  this  name 
than  the  one  I  now  bear.  I  have  nothing  to  conceal  in  my  past  life 
and  the  purpose  of  the  change  is  to  aid  me  in  becoming  a  better 
American  citizen.  I  have  two  brothers  who  now  reside  in  the  United 
States  both  of  whom  have  taken  and  are  known  by  the  name  of 
Norman  and  it  is  our  intention  that  our  family  name  in  the  United 
States  shall  be  Norman.  I  have  purchased  land  in  the  United  States 
and  the  contract  of  purchase  was  made  in  the  name  of  Paul 
Norman." 

This  declaration  seems  also  to  meet  the  purpose  of  some 
statutes,  like  those  of  New  York,^  in  requiring  petitioner 
to  state  whether  there  are  judgments,  suits,  or  claims 
against  him  under  the  old  name.  The  reason  assigned  for 
the  change  appears  to  be  sufficient  and  "not  inconsistent 
with  the  public  interest."  Accordingly,  in  the  language  of 
the  statutes,  we  find  the  showing  "satisfactory." 

Due  notice  having  been  given,  no  opposition  having  been 
offered,  and  no  reason  to  the  contrary  appearing,  it  is 
hereby  considered  and  decreed  that  the  name  of  Paisach 
Narodezky  be,  and  the  same  hereby  is,  changed  to  Paul 
Norman  by  which  name  the  petitioner  shall  hereafter  be 
known,  the  same  as  if  it  had  been  duly  given  him  at  baptism ; 
and  that  he  pay  the  costs  of  this  proceeding.^ 


'In  re  Snook,  2  Hilt.,  566;  Matter  of  Hamilton,  10  Abb.  N.  Cas.,  79. 

*  Upon  a  similar  petition  by  Peter  Ohio  Nangle  (Cause  No.  732), 
the  court  rendered  the  following  decree  on  April  18,  1919 : 

This  cause  comes  on  for  hearing  upon  the  petition  and  the  evidence, 
upon  consideration  whereof  the  Court  finds: 

1.  That  the  petitioner  is  a  citizen  of  the  United  States,  having 
been  born  at  Columbus,  Ohio,  on  April  7,  1895; 

2.  That  the  petitioner  was  christened  under  the  name  of  Peter 
Ohio  Nangle  but  during  a  portion  of  his  early  life  and  subsequently 
he  was  known  by  the  name  of  John  William  Cotter,  which  was  that 
of  his  god-father; 

3.  That  under  said  last  mentioned  name  the  petitioner  was  married 
and  is  known  by  that  name  in  the  community  where  he  lives; 

4.  That  notice  of  his  application  to  change  his  name  from  that 
under  which  he  was  christened  to  the  one  last  mentioned  has  been 
duly  published  and  that  ample  time  has  been  given  for  objection  or 
opposition  to  such  change; 

5.  That  no  reason  appears  why  said  change  of  name  should  not 

14008  O.  W. 52 


818  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

John  Layton  Company  (a  Corporation),  Complainant,  v. 
Carl  Blomberg,  Respondent. 

[Cause  No.  657;  filed  December  3,  1918.] 

SYLLABUS. 
(By  the  Editor.) 

1.  INJUNCTIONS:    CONTEMPT.     EVIDENCE   equivalent  to   that   required 

for  conviction  of  crime  is  necessary  in  order  to  establish  the 
violation  of  an  injunction. 

2.  CONTRACTS:  RESTRAINT  OF  TRADE:  TESTS.     Limits  of  time  and  area 

are  no  longer  the  controlling  tests  of  validity  for  contracts  in 
restraint  of  trade;  the  test  of  reasonableness,,  as  regards  the 
business   in   question,  applied. 

3.  Id.  :  Divisibility.     A  prohibition  of  entering  at  any  time  ,anywhere 

in  China,  other  similar  employment  in  a  business  of  which  the 
employer  has  but  one  plant,  is  indivisible  and  \mreasonable ; 
but  a  prohibition  of  divulging  trade  secrets  is  separable  from 
the  above  and  enforceable. 

Messrs.  Jernigan,  Fessenden  &  Rose,  Geoffrey  H.  Wright, 
H.  G.  C.  Bailey,  and  R.  T.  Bryan,  Jr.,  for  complainant. 

Ralph  A.  Frost,  Esq.,  and  Messrs.  Fleming  &  Davies,  forj 
respondent. 

Lobingier,  J.: 

The  bill  in  this  cause  prayed  the  enforcement  by  in- 
junction of  a  contract  by  which  the  respondent 

"agrees  that  he  will  at  no  time  without  the  written  consent  of  saidj 
Employer  either  in  his  own  behalf  or  any  person  or  company  other] 
than  said  Employer  or  said  International  Export  Company,  enter] 
into  any  business  in  China  in  any  way  connected  with  or  pertaininf 
to  eggs  or  poultry  or  any  other  kind  of  business  transacted  by  orj 
in  behalf  of  the  International  Export  Company  and  that  he  will  not 
give  out  any  information  to  any  one  other  than  the  Employer  anc 

be  effected  and  that  sufficient  reasons  appear  from  the  evidence  that 
it  would  be  to  the  petitioner's  advantage  to  effect  such  change. 

It  is  accordingly  considered  and  decreed  that  the  name  of  Peter 
Ohio  Nangle  be  and  the  same  hereby  is  changed  to  that  of  John 
William  Cotter,  by  which  name  the  petitioner  shall  hereafter  be 
known  the  same  as  if  it  had  been  duly  given  him  at  baptism. 
Cf.,  In  re  Pfeffer,  Cause  No.  848. 


JOHN  LAYTON  CO.  V,  BLOMBERG,  DEC.  3,  1918.     819 

said  International  Export  Company  or  the  duly  ci'edited  representa- 
tives of  them  or  either  of  them  in  respect  of  any  branch  of  the  egg 
or  poultry  business  in  China  or  any  other  kind  of  business  transacted 
by  the  Employer  or  the  International  Export  Company. 

If  the  employee  shall  at  any  time  wilfully  neglect  or  refuse  or  in 
any  way  prove  himself  dishonest  or  untrustworthy  or  from  any  other 
cause  shall  not  satisfactorily  carry  out  his  duties,  of  which  breach, 
incompetency,  unsatisfactory  conduct,  insubordination  or  disobedience 
the  Employer  shall  be  the  sole  judge  and  whose  decision  shall  be 
binding  and  conclusive,  the  Employer  shall  be  at  liberty  to  dismiss 
him  and  terminate  this  contract  and  pay  to  said  employee  the  portion 
of  salary  due  to  him  for  the  time  actually  served  up  to  the  date  of 
his  dismissal." 

The  bill  alleged  complainant's  dismissal  of  respondent, 
the  latter's  acceptance  of  employment  by  a  rival  firm  and 
that 

"by  so  doing  the  defendant  caused  and  is  causing  great  and  irrepa- 
rable damage  to  the  plaintiff." 

Principally  upon  the  strength  of  this  last  averment  and 
after  an  ex  parte  hearing,  the  court,  in  order  to  preserve 
the  status  quo  ante  during  the  brief  period  which  should 
elapse  before  the  cause  could  be  heard  upon  its  merits, 
granted  on  June  6,  1918,  a  temporary  injunction 

"restraining  the  respondent  from  continuing  in  the  employ  of 
any  one  in  Hankow  other  than  complainant  and  the  International 
Export  Company  whose  business  is  in  any  way  connected  with  eggs 
or  poultry."  ^ 

The  answer  filed  on  June  20,  alleges  that  respondent's 
dismissal  was  wrongful,  denies  that  his  present  employer 
is  a  business  rival  and  finally  avers 

"that  the  clause  of  said  agreement  which  provides  that  'he  (the 
defendant)  will  at  no  time  without  the  written  consent  of  said  em- 
ployer (the  plaintiff)  or  said  International  Export  Company,  enter 
into  any  business  in  China  in  any  way  connected  with  or  pertaining 
to  eggs  or  poultry  or  any  other  kind  of  business  transacted  by  or 
in  behalf  of  the  International  Export  Company,'  is  in  restraint  of 
trade,  contrary  to  public  policy,  illegal  and  void;  and  (6)  that  the 
clause  in  said  agreement  which  provides  in  substance  that  the  em- 
ployer (the  plaintiff)  shall  be  the  sole  judge  and  that  its  decision 
shall  be  binding  and  conclusive  on  questions  of  alleged  misconduct, 
neglect  or  breach  of  the  agreement  on  the  part  of  the  defendant,  is 
contrary  to  public  policy,  illegal  and  void." 

^  See  ante,  p.  762. 


820  I  EXTRATERRITORIAL  CASES. 

Previous  to  the  hearing,  complainant  offered  certain 
affidavits  in  support  of  a  claim,  made  orally  in  open  court, 
that  respondent  had  violated  the  terms  of  the  injunction. 
But  as  no  formal  motion  for  an  order  to  show  cause  w^as 
presented,  said  claim  was  heard  in  connection  with  the 
hearing  on  the  merits  and  both  parties  were  given  op- 
portunity to  present  evidence  thereon. 

Aside  from  the  affidavits,  which  are  mainly  to  the  effect 
that  respondent  was  seen  upon  the  premises  of  his  em- 
ployer after  the  service  of  the  order  of  injunction  (which 
did  not  prohibit  him  therefrom),  a  Chinese  mason  named 
Wong  Her  Gee  testified  that  on  the  night  of  June  10,  two 
days  after  the  service  of  the  order,  the  respondent  gave 
directions  to  the  witness  and  others  regarding  the  placing 
of  two  layers  of  brick  on  the  premises  of  respondent's  em- 
ployer. On  cross-examination  he  admitted  that  a  certain 
clerk  told  him  that  respondent  had  given  orders  to  work 
at  night.  A  Chinese  coolie  also  testified  to  orders  by  re- 
spondent but  on  cross-examination  admitted  that  he  did  not 
hear  them  given.  On  the  other  hand,  respondent  states 
positively  that  he  did  nothing  in  the  way  of  "working, 
giving  orders  or  constructing"  after  the  service  of  the  order ; 
and  we  must  find  the  evidence  of  violation  insufficient  under 
a  well  known  rule  which  has  been  thus  stated  in  a  work  ^ 
of  authority : 

"Proceedings  in  contempt  being  in  their  nature  criminal  in 
character  the  strict  rule  of  construction  applicable  to  a  criminal 
prosecution  obtains  therein,  and  presumptions  and  intendments  will 
not  be  indulged  to  sustain  a  conviction.  The  guilt  must  be  estab- 
lished by  clear  and  satisfactory  evidence;  a  mere  preponderance  is 
not  enough.  The  accusations  must  be  supported  by  evidence  sufficient 
to  convince  the  mind  of  the  trior  beyond  a  reasonable  doubt  of  the 
actual  guilt  of  the  accused." 

II. 

In  granting  the  temporary  injunction  we  had  occasion  to 
observe — 

"It  is  no  longer  the  rule  either  in  England  or  America  that  a 
contract  by  which  one  party  agrees  not  to  engage  in  a  certain 
business  for  a  limited  time  within  even  an  extensive  area  is  void." 

'  9  Cyc,  45,  46. 


JOHN  LAYTON  CO.  V.  BLOMBERG,  DEC.  3,  1918.  821 

Neither  the  able  and  exhaustive  argument  of  counsel  in 
this  case  nor  our  own  subsequent  researches  have  given  us 
any  reason  for  qualifying  that  statement  of  the  law.  But 
the  prohibition  above  quoted  from  the  contract  is  not,  it  will 
be  seen,  "for  a  limited  time."  On  the  contrary  the  re- 
spondent agreed  that  he  would  "at  no  time  *  *  *  enter 
into  any  business  in  China,"  etc.  The  authority  ^  chiefly 
relied  upon  by  complainant  in  oral  argument  and  cited  in 
the  former  opinion  upheld  a  contract  unlimited  in  area 
but  limited  in  time  to  twenty-five  years. 

On  the  other  hand,  H.  B.  M.  Supreme  Court  in  China  * 
refused  an  injunction  to  enforce  as  to  other  ports  than 
Shanghai  an  agreement  by  an  employee  not  to  enter  for 
ten  years  into  the  service  of  any  other  person  in  Shanghai 
or  any  other  place  where  the  employer  might  have  a  branch 
business. 

However,  it  seems  now  to  be  well  recognized  that  the 
former  tests  by  limits  have  lost  their  importance.  As  was 
said  in  a  case  ■'  in  which  this  Court  declined  to  uphold  a 
clause  forbidding  a  retiring  member  of  the  pilots'  associa- 
tion to  pursue  his  calling  for  a  period  of  two  years,  it  is 
neither  the  duration  of  the  contract  nor  the  area  over 
which  it  is  meant  to  extend  which  constitutes  the  deter- 
mining factor  as  regards  its  validity;  they  are  merely 
elements  in  the  general  consideration  of  its  reasonableness.^ 

An  English  work  of  authority  '^  summarizes  the  result  of 
the  "all  important  decision"  ^  by  the  House  of  Lords  above 
cited,  as  follows: 

"1.  The  old  rule  distinguishing  between  general  and  particular 
restraints  has  ceased  to  afford  the  practical  test,  which  is  now  in 
all  cases  the  reasonableness  of  the  covenant  i/a  the  interests  of  the 
covenantee. 

'  Nordenfelt  v.  Maxim  etc.  Co.  Ltd.,  1894,  A.  C.  535. 

'Hall  &  Holtz  Ltd.  v.  Tozer,  North  China  Herald,  LXXX,  54,  94 
(July,  1906). 

°  Woosung-Hankow  Pilots'  Association  v.  Butland,  ante,  p.  270. 

'  Citing  Anson  on  Contracts,  230. 

'  Matthews  &  Adler,  Covenants  in  Restraint  of  Trade  (2nd  ed., 
1907),  63. 

'Nordenfelt  v.   Maxim  etc.  Co.  Ltd.,  1894,  A.  C.  535. 


g22  I  EXTRATERRITORIAL  CASES. 

"2<  In  weighing  the  reasonableness  of  the  restraint  regard  must 
be  had  to  the  following  considerations: 

"(a)  The  generality  of  the  covenant,  whether  as  to  time  or  space, 
may  i-ender  it  unreasonable.  A  covenant  is  not  necessarily  valid 
because  restricted  as  to  time,  but  may  be  void  because  it  is  not  so 
restricted. 

"(6)  Different  degrees  of  protection  are  reasonable  in  different 
cases;  e.  g.,  in  the  sale  of  a  trade  secret,  sale  of  goodwill,  or  dis- 
solution of  partnership  and  contracts  of  service  respectively.  A 
trade  secret  needs  absolute  protection,  and  there  is  greater  freedom 
of  negotiation  in  the  case  of  the  sale  of  goodwill  than  in  cases  of 
apprenticeship. 

"(c)  The  reasonableness  of  the  restriction  must  be  judged  by  the 
character  and  nature  of  the  business  or  its  customers." 

One  of  the  authorities  ^  presented  by  complainant's 
counsel  contains  the  following  discussion  on  this  point: 

"No  better  test  can  be  applied  to  the  question  whether  a  particular 
contract  is  reasonable  than  by  considering  whether  the  restraint  is 
such  only  as  to  afford  a  fair  protection  to  the  interests  of  the  party 
in  favor  of  whom  it  is  given,  and  not  so  large  as  to  interfere  with 
the  interests  of  the  public.  Whatever  restraint  is  larger  than  the 
necessary  protection  of  the  party  can  be  of  no  benefit  to  either;  it 
can  be  only  oppressive,  and  if  oppressive  it  is,  in  the  eye  of  the  law, 
unreasonable.^" 

"The  covenant  is  inserted  only  to  protect  one  of  the  parties  from 
the  injury  which,  in  the  execution  of  the  contract  or  enjoyment  of 
its  fruits,  he  may  suffer  from  the  unrestrained  competition  of  others. 
The  main  purpose  of  the  contract  suggests  the  measure  of  protection 
needed,  and  furnishes  a  sufficiently  uniform  standard  by  which  the 
validity  of  such  restraints  may  be  judicially  determined.  In  such  a , 
case,  if  the  restraint  exceeds  the  necessity  presented  by  the  Tnadn 
purpose  of  the  contract,  it  is  void  for  two  reasons :  first,  because  it 
oppresses  the  covenantor,  without  any  corresponding  benefit  to  the 
covenantee;  and,  second,  because  it  tends  to  a  monopoly.  It  may 
be  added  that  even  though  there  is  an  apparent  main  lawful  purpose, 
yet  if  the  obvious  purpose  and  necessary  result  of  the  contract  are 
to  establish  a  monopoly,  the  contract  is  void. 

"The  validity  of  the  contract  should  be  determined  not  by  what , 
has  been  done  under  it,  but  by  what  may  be  done  under  it;  by  what 
will  be  its  real  tendency  with  reference  to  trade  and  monopoly  when 
in  full  operation." 

Applying  to  this  case  the  foregoing  tests  we  may  now 
inquire, 

°  Ruling  Case  Law,  VI,  sec.  194,  p.  789. 

^^  Citing  Harrison  v.  Glucose  Sugar  Refining  Co.,  116  Fed.,  304, 
58  L.  R.  A.,  915,  and  other  cases. 


JOHN  LAYTON  CO.  V.  BLOMBERG,  DEC.  3,  1918.     823 

1.  What  feature  of  complainant's  business  needs  the  pro- 
tection of  the  clause  prohibiting  respondent  from  entering 
into  similar  business  anywhere  in  China  at  any  time?  The 
evidence  discloses  but  one  plant  of  complainant  in  China 
and  that  at  Hankow.  In  the  case  "  already  cited  from 
H.  B.  M.  Supreme  Court  in  China,  the  agreement  not  to 
enter  for  a  period  of  ten  years  into  the  service  of  any 
other  person  in  Shanghai  where  the  employer  might  have 
a  branch  business,  was  held  unreasonable,  as  to  all  except 
Shanghai,  in  the  absence  of  proof  that  branches  had  been 
opened  elsewhere. 

2.  What  of  "the  character  and  nature  of  the  business 
or  of  its  customers?"  Complainant's  customers  are  ap- 
parently not  found  in  China  at  all  for  its  business  appears 
to  consist  in  manufacturing  its  product  and  shipping  it 
to  outside  countries.  No  evidence  has  been  produced  which 
would  justify  us  in  finding  that  complainant  would  suffer 
any  loss  of  custom  whatever  thru  the  mere  fact  of  re- 
spondent's employment  by  a  concern  engaged  in  similar 
business  in  Shanghai  or  Tientsin.  Indeed  if  we  are  to 
accept  the  estimate  given  by  complainant's  local  manager 
as  to  the  quality  of  respondent's  services,  the  result  would 
be  quite  the  contrary. 

On  the  other  hand,  the  literal  enforcement  of  the  clause 
renders  respondent  wholly  useless  for  the  balance  of  his 
life  to  the  development  in  China  of  an  important  industry. 
This,  as  recited  in  the  works  above  quoted,  is  not  only 
oppressive  to  him  but  tends  to  prejudice  the  public.  It  is 
suggested  indeed  that  the  commercial  area  of  China  is  after 
all  quite  limited;  but  it  appears  that  this  particular 
business  is  already  conducted  in  various  parts  of  the  coun- 
try. Moreover,  to  repeat  a  portion  of  the  language  above 
quoted,  we  must  consider  "what  may  be  done"  and  it  re- 
quires little  stretch  of  the  imagination  to  conceive  that 
industries  of  this  class  may  in  time  become  not  only  ex- 
tensive but  very  numerous  in  a  country  of  such  vast  extent 
as  China. 

In  the   oral  argument   complainant's   counsel   cited   no 

"Hall  &  Holtz,  Ltd.,  v.  Tozer,  North  China  Herald,  LXXX,  94 
(July,  1906). 


824  I   EXTRATERRITORIAL   CASES. 

case  where  a  contract  unlimited  in  time  and  covering  an 
area  as  extensive  as  this  was  upheld.  In  an  able  and 
exhaustive  brief  presented  since  the  trial  various  author- 
ities are  cited  on  the  main  proposition  but  none  of  them 
conflicts  with  the  rule  of  "reasonableness"  announced  above. 
The  facts  in  each  of  them  differ  widely  from  those  of  this 
record. 

In  the  one  Supreme  Court  decision  "  cited  on  this  point 
it  was  found  that  the  business  extended  over  a  number 
of  states  and  a  sale  of  the  goodwill  with  an  agreement 
not  to  reengage  in  the  business  was  enforced,  the  court 
thus  applying  the  rule  we  have  followed: 

"Public  welfare  is  first  considered,  and  if  it  be  not  involved,  and 
the  restraint  upon  one  party  is  not  greater  than  protection  to  the 
other  requires,  the  contract  may  be  sustained.  The  question  is 
whether,  under  the  particular  circumstances  of  the  case,  and  the 
nature  of  the  particular  contract  involved  in  it,  the  contract  is,  or 
is  not,  unreasonable. 

Two  of  three  cases  cited  by  court  are  English.^- 

In  what  complainant's  counsel  say  is  the  latest  decision  ^' 

which  they  have  found  and  which,  it  is  claimed,  "supports; 

our  contention  to  the  fullest  degree"  the  court  emphasizes! 

the  extent  of  the  business  which  had  been  sold  as  follows: 

"At  the  time  of  the  sale,  when  appellee's  business  in  diggers  was] 
five  years  old  and  in  augers  two,  it  had  marketed  these  articles  in ' 
thirty-four  of  the  United  States  and  in  two  Canadian  provinces. 
*  *  *  By  reasonable  attention  the  trade  could  be  expected  to  j 
extend  'throughout  all  parts  of  the  United  States  and  Canada  where] 
augers  and  diggers  can  be  used.'  So  it  is  evident  that  appellee  wasj 
selling  and  was  covenanting  to  protect  a  national  and  international] 
goodwill." 

The  court  then  states  the  precise  rule  we  have  applied 
here,  viz., 

"A  restraint  of  500  miles  and  50  years  on  a  village  doctor,  who! 
had  only  a  local  practice,  would  be  unreasonable,  because  not  reason-] 
ably  necessary   to   the  protection  of  his   successor,  while   a   general 
covenant  by  Pears   Soap   Company  should  be  enforced    (at   least  toj 

"  Fowle  v.  Park,  131  U.  S.,  88,  33  L.  ed.,  67. 
""Rousillon  V.  Rousillon,  L.  R.  14  Ch.  Div.,  351;  Leather  Cloth  Co. 
V.  Lorsont,  L.  R.  9  Eq.,  345. 

"  Hall  Mfg.  Co.  V.  Western  Steel  &  Iron  Works,  227  Fed.,  588. 


JOHN  LAYTON  CO.  V.  BLOMBERG,  DEC.  3,  1918.    825 

the  extent  of  the  decreeing  court's  reach)  because  the  goodwill  of 
the  business  is  world-wide  and  of  expected  indefinite  continuance." 

In  another  case "  the  trial  court,  whose  decree  was 
affirmed,  spoke  of  "the  wide  area  over  which  business  was 
transacted"  and  found  that  "the  firm  had  built  up  a 
business  extending  practically  throughout  the  country." 
The  Court  of  Appeals  merely  rejected  appellant's  conten- 
tion that  the  seller's  agreement  not  to  reengage  in  the 
business  was 

"broader  than  necessary  to  protect  the  complainant  in  the  reasonable 
enjoyment  of  the  business  purchased,  upon  the  ground  that  the  proofs 
do  not  show  that  the  business  in  question  was,  at  the  time  of  the 
purchase  of  appellant's  interest,  conducted  throughout  the  entire 
United  States." 

Nothing  in  this  conflicts  with  the  doctrine  we  have  stated. 

In  the  case  ^^  which  complainant  cites  as  the  first  of 
those  "where  there  is  no  limit  as  to  time  or  territory"  the 
court  merely  sustained  on  demurrer  complainant's  claim, 

"That  a  restrictive  covenant,  made  by  one  capable  of  contracting, 
which  is  unlimited  as  to  time,  and  in  area  covers  the  entire  United 
States,  and  is  ancillary  to  the  main  lawful  contract,  being  in  part 
consideration  of  the  goodwill  sold,  and  is  reasonable,  and  is  no  broader 
than  is  necessary  to  save  to  the  covenantee  the  rights  and  privileges 
for  which  he  has  paid,  may  be  enforced." 

In  a  case  ^*^  which  turned  largely  upon  the  question  of 
unlawful  combination  the  contract  is  not  set  out  in  full 
but  respondent's  contention  was  not  disputed  that  the 
real  purpose  of  the  sale  there  involved  was  to  "control 
the  business  of  buying,  importing  and  selling  fruit  through- 
out the  United  States." 

In  the  last  '^  of  complainant's  citations  on  this  point 
the  court  deduces  from  various  authorities  the  same  rule 
which  we  have  derived,  viz., 

"With  respect  to  the  territory  to  which  the  restriction  should  apply, 
the  rule  has  always  been  that  it  might  extend  to  the  limits  wherein 
the  plaintiff's  trade  would  be  likely  to  go." 

"  Frame  v.  Ferrell,  166  Fed.  702. 

"  Nat.  Enameling  etc.  Co.  v,  Haberman,  120  Fed.  415. 
"  Canors-McConnell  Co.  v.  McConnell,  140  Fed.  412. 
"  Knapp  v.  S.  Jarvis  Adams  Co.,  135  Fed.  1008. 


g26  I  EXTRATERRITORIAL  CASES. 

Surely  nothing  in  this  record  would  justify  the  enforce- 
ment of  this  contract  as  to  all  China  under  such  a  rule. 
As  to  all  of  these  cases  it  is  to  be  observed  then: 

1.  The  business  in  question  was  conducted  over  an  ex- 
tensive area  and  the  contract  merely  folloived  the  business. 

2.  The  doctrine  applied  invariably  was  the  doctrine  of 
reasonableness  which  we  have  adopted. 

3.  The  contracts  enforced  were  not  mere  contracts  of 
employment  but  sales  of  the  good  will  of  the  business. 

For  respondent's  contract  is  in  the  nature  what  one  of  the 
authorities  above  calls  an  "apprenticeship"  regarding  which 
it  is  said  there  is  not  the  same  freedom  of  negotiation 
as  in  the  sale  of  goodwill.  In  other  words,  if  respondent 
had  been  conducting  a  rival  business  which  he  had  sold 
upon  a  sufficient  consideration  to  complainant  with  an 
incidental  agreement  not  to  engage  again  in  the  same 
business  in  China,  there  would  have  been  more  reason  for 
its  literal  enforcement.  But  here  respondent  sold  nothing. 
He  merely  engaged  at  the  very  moderate  salary  of  $200 
a  month  to  serve  complainant  under  what  purports  to  be 
an  arrangement  terminable  at  complainant's  will. 

Counsel  admit  that  they  have  "been  unable  to  find  a 
case  where  a  contract  of  employment  like  ours  has  been 
construed  by  the  Federal  Courts."  Necessarily,  then,  the 
alleged  conflict  between  the  doctrine  of  those  courts  and 
what  counsel  in  argument  called  the  "English  rule"  has  not 
been  established.  The  one  case  ^^  which  they  cite  relates  to 
a  contract  of  employment  for  two  years  only,  on  a  restricted 
laundry  route  in  a  single  city — surely  a  very  different 
situation. 

On  the  whole,  we  are  unable  to  find  that  the  clause  here 
invoked  meets  the  tests  of  reasonableness  imposed  by  the 
authorities,  and  after  reviewing  them  we  are  forced  to 
the  conclusion  that  said  clause  "exceeds  the  necessity  pre- 
sented by  the  main  purpose  of  the  contract." 

"  Eureka  Laundry  Co.  v.  Long,  146  Wis.,  205,  131  N.  W.,  412,  35 
L.  R.  A.  (N.  S.),  119. 


JOHN  LAYTON  CO.  V.  BLOMBERG,  DEC.  3,  1918.  827 

III. 

In  granting  the  temporary  injunction  we  referred  to 
the  rule  that  where  "the  contract  is  divisible  it  may  be 
enforced  locally  even  tho  the  provisions  as  to  a  larger 
area  are  not  upheld."  This  doctrine  is  well  recognized  in 
England  ^^  and  it  was  thereunder  that  in  the  case  above 
cited  H.  B.  M.  Supreme  Court  in  China  was  able  to  seg- 
regate the  prohibition  regarding  Shanghai  from  that 
relating  to  any  other  place  where  complainants  might  have 
a  branch  business.  In  the  decision  -'^  on  this  point  cited 
in  our  former  opinion  and  now  invoked  by  counsel  for 
complainant,  the  Supreme  Court,  applying  the  same  doc- 
trine, upheld  that  portion  of  the  contract  in  judgment  which 
related  to  one  state  tho  in  fact  another  state  was  included. 

Counsel  assert  "that  there  is  no  conjunctive  word  used," 
etc. ;  but  the  contract  bound  the  steamship  company  not 
to  operate  on  the  "waters  of  the  state  of  California  or  the 
Columbia  river."  On  the  authority  of  English  decisions 
construing  similar  clauses  ^^  the  Supreme  Court  held  this 
contract  divisible,  saying: 

"This  stipulation  excluded  the  steamer  from  the  territory  covered 
by  the  former  stipulation  exacted  by  the  California  Company,  and 
also  from  the  territory  occupied  by  the  Oregon  Company  itself.  The 
latter  portion  of  the  stipulation  stands  on  the  same  ground  and  reason 
as  did  the  first  stipulation  between  the  California  and  Oregon  Com- 
panies." 

It  is  true  that  the  court  enforced  the  contract  for  only 
a  part  of  the  stipulated  period  but  it  did  so  because  that 
part  related  to  the  Oregon  branch  of  the  contract  which 
it  found  divisible  from  the  California  branch.  The  court 
upheld  the  seven  year  provision  for  the  Oregon  branch  only 
because  the  latter  was  severable  from  the  former.  In 
other  words  the  division  was  primarily  territorial  and  not 

"  Matthews  &  Adler,  Covenants  in  Restraint  of  Trade  (2d  ed., 
1907),  Ch.  IV. 

'°  Oregon  Steam  Nav.  Co.  v.  Winsor,  20  Wall.,  64,  22  L.  ed.,  315. 

"  E.  g.,  in  Price  v.  Green,  16  M.  &  W.,  346,  where  the  contract 
excluded  "London  or  within  600  miles  thereof." 


828  I  EXTRATERRITORIAL  CASES. 

temporal  and  the  latter  was  merely  a  corollary  from  the 
former. 

Counsel  admit  that  the  Supreme  Court  "cite  some  English 
decisions  in  support  of  their  opinion."  The  fact  is  that 
out  of  eight  cases  cited  in  the  opinion  all  save  two  are 
English  and  those  two  are  cited  on  a  minor  point.  In- 
stead of  a  conflict  such  as  counsel  suggest  between  "the 
English  Courts  and  our  Federal  Courts"  the  English 
cases  are  the  only  ones  upon  which  the  Supreme  Court 
assumes  to  base  its  main  conclusions  and  a  review  of  those 
cases  would  seem  to  be  in  order. 

Where  a  tailor's  employee  engaged  not  to  carry  on  "any 
business  whatsoever  within  the  distance  of  one  mile  of" 
the  employer's  establishment  for  a  period  of  two  years, 
the  court  said  in  denying  an  injunction: 

"If  the  plaintiff's  argument  be  good,  therr  in  every  such  case  the 
Court  could  carve  out  of  the  unreasonable  distance  a  distance  which 
would  be  reasonable.  Thus  if  the  covenant  were,  e.  g.,  not  to  carry 
on  a  business  in  any  part  of  the  whole  world,  the  court  would  be  asked 
to  uphold  it  by  construing  it  as  a  covenant  not  to  carry  on  the  busi- 
ness within,  say,  a  limit  of  2  miles,  which  would  in  effect  be  making 
a  new  covenant,  not  that  to  which  the  parties  agreed."  " 

The  sam.e  course  was  taken  where  the  employee  had 
agreed  "that  he  would  not  be  in  any  way  connected  with 
any  other  business  within  three  miles,"  Byrne,  J.,  holding 
that  the  phrase  "any  other  business"  was  not  divisible.** 

Where  the  employee,  also  a  tailor, 

"bound  himself  not  to  enter  into  any  business  arrangement  in  com- 
petition with  or  that  would  in  any  way  interfere  with  the  business 
carried  on  by  the  plaintiff  at  his  establishments  in  Weybridge  or  the 
city  of  London,  or  at  any  of  his  addresses  of  the  future,"  " 

Lord  Alverstone,  in  giving  judgment, 

"said  that  the  Court  could  not  break  up  covenants  of  this  sort,  unless 
after  severance  an  enforceable  contract  remained;  and  here  the  words 
'will  not  enter  into  any  business  arrangement  in  competition  with 
the  plaintiff'  were  too  wide  both  as  to  time  and  as  to  space,  and  too 
vague.  There  was  no  residuum  not  open  to  objection  that  the  Court 
could  enforce." 


^  Baker  v.  Hedgecock,  39  Ch.  Div.,  520   (1888). 
"Woods  v.  Thornburn,  103  L.  T.  J.,  421. 
"Beetham  v.  Fraser,  21  T.  K.  R.,  8   (1904). 


JOHN  LAYTON  CO.  V.  BLOMBERG,  DEC.  3,  1918.  829 

So  where  the  clause  read  "30  miles  from  either  the  Town 
Hall  at  Bournemouth  or  the  Bargate  at  Southampton"  it 
was  held  indivisible.-^ 

The  doctrine  of  these  cases  has  been  summarized  as 
follows : 

"The  covenant  must,  however,  be  so  expressed  that  it  is  severable 
without  malcing  a  new  contract  between  the  parties  for  the  sake  of 
validating  an  instrument  otherwise  void;  the  test  is,  whether  it  can 
be  stated  as  two  or  more  distinct  covenants. 

"It  is  not  permissible  to  sever  a  proviso  from  the  rest  of  the 
covenant  when  the  proviso  affects  the  meaning  of  the  whole;  and 
one  part  of  a  covenant  may  not  be  severed  from  another  unless  an 
enforceable  contract  remains."  ^' 

The  Supreme  Court  having  followed  the  English  doctrine 
it  would  not  matter  what  the  inferior  Federal  courts  might 
hold  tho  a  'priori  it  would  be  strange  indeed  if  any  of 
the  latter  should  differ  from  the  former.  But  the  two 
cases  cited  by  counsel  announce  no  doctrine  which,  in  our 
judgment,  conflicts  with  that  of  either  the  Supreme  Court 
or  the  English  Cases.  In  the  first  -'  there  was  no  attempt 
to  divide  the  contract  because  the  court  considered  that 
it  was  valid  as  a  whole,  and  limited  to  one  country  instead 
of  being,  as  was  contended,  unlimited.  In  the  second  ^^ 
the  question  of  divisibility  does  not  seem  to  be  touched  upon. 

Nor  do  we  find  any  different  doctrine  announced  by  the 
state  courts.     On  the  contrary 

"It  is  a  recognized  principle  that  when  a  contract  is  or  can  be 
so  separated  in  parts  as  to  constitute  two  agreements,  one  illegal 
and  the  other  legal,  the  latter  may  be  enforced,  and  the  transaction 
pro  tanto  sustained.  But  it  is  otherwise  where  the  contract  in  its 
nature  is  not  divisible."  ^ 

'"Hooper  &  Ashey  v.  Willis,  21  T.  L.  R.,  691,  affirmed  22  T.  L.  R. 
451. 

'"  Halsbury's  Laws  of  England  27,  574,  575.  Of.  American  & 
English  Encyc.  of  Law  (2d  ed.),  XXIV,  855,  856,  citing  numerous 
cases  English  and  American. 

"  Frame  v.  Ferrel,  166  Fed.,  702. 

"*  Hall  Mfg.  Co.  V.  Western  Steel  &  Iron  Works,  227  Fed.,  588. 

"  Consumers'  Oil  Co.  v.  Nunnemaker,  142  Ind.,  560,  41  N.  E.,  1048. 
See  also  Wiley  v.  Baumgardner,  97  Ind.,  66;  Beard  v.  Dennis,  6  Ind,, 
200. 


830  I  EXTRATERRITORIAL  CASES. 

If  the  contract  before  us  had  prohibited  respondent  from 
entering  into  other  employment  in  Hayikow  or  elseivhere 
it  might  have  been  upheld  as  to  Hankow,  and  it  was  in 
partial  contemplation  of  such  a  possibility  that  the  tem- 
porary injunction,  limited  to  Hankow  alone,  was  granted. 
But  a  study  of  the  contract  in  the  light  of  the  authorities 
convinces  us  that  the  prohibition  as  to  place  of  employ- 
ment is  not  divisible. 

We  are  of  the  opinion,  however,  that  said  covenant  may 
be  segregated  from  certain  other  clauses  of  the  contract, 
e,  g.,  the  undertaking  that  the  employee  is  not  "to  divulge 
any  secret  *  *  *  which  he  may  receive  or  obtain 
relating  to  the  business,"  etc.  As  stated  in  one  of  the 
authorities  above  quoted  "a  trade  secret  needs  absolute 
protection,"  -°  and  while  the  testimony  in  this  case  fails  to 
show  any  specific  secret  which  respondent  has  so  obtained, 
still,  if  there  is  none  such,  the  prohibition  will  not  pre- 
judice him  and  if,  as  would  be  only  natural,  some  such 
secret  has  been  learned,  complainant  is  entitled  to  its  con- 
cealment. 

The  answer  as  we  have  seen  assails  the  validity  of  that 
clause  of  the  contract  which  makes  the  employer  "the  sole 
judge"  of  whether  certain  specified  grounds  of  dismissal 
have  accrued.  But  in  view  of  the  conclusion  which  we 
have  reached  we  consider  it  unnecessary  to  enter  into  a 
discussion  of  that  question  which,  it  was  intimated  in 
argument,  is  now  being  litigated  in  another  forum.  Any- 
thing we  might  say  on  that  point,  therefore,  would  not 
only  be  unnecessary  here  but  might  needlessly  prejudice 
the  rights  of  parties  to  said  proceedings.  As  none  of  the 
evidence  offered  under  this  clause  of  the  answer  has  been 
considered  no  time  need  be  spent  on  the  first  contention 
in  complainant's  brief,  viz.,  that  said  evidence  should  not 
have  been  received. 

The  motion  for  a  new  trial  is  accordingly  overruled  and 
the  decree  heretofore  entered,  dissolving  the  temporary 
injunction   but  enjoining  respondent  from  divulging  any 

"Matthews  and  Adler,  Covenants  in  Restraint  of  Trade  (2d  ed., 
1907),  64. 


IN  RE  KRISEL,  DEC.  6,  1918.  831 

secret  or  giving  out  any  information  which  he  may  have 
obtained  v^hile  in  complainant's  employ  relating  to  its 
business  or  that  of  the  International  Export  Company  and 
likely  in  any  way  to  affect  its  interests,  is  confirmed. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Alexander  Krisel. 

[Cause  No.  705;  filed  December  6,  1918.] 

SYLLABUS. 
(By  the  Court.) 

1.  DISTRICT  ATTORNEY  may  call  to  his   assistance  in   special  cases 

another  member  of  the  bar  who  may  act  temporarily  without 
commission  or  oath. 

2.  Id.  :   Disbarment  Proceedings  may  be  instituted  by  another  than 

the  District  Attorney. 

William  S.  Fleming,  Esq.,  for  respondent's  motion. 
Robert  T.  Bryan,  Jr.,  Esq.,  Special  Assistant  U.  S.  Dist. 
Atty.,  contra. 

Lobingier,  J.: 

The  respondent  moves  to  quash  the  motion,  in  the  nature 
of  an  information,  on  the  ground  that  the  one  who  appears 
therein  as  accuser  and  who  signs  and  verifies  the  same 
"has  not  been  lawfully  appointed  Special  Assistant  United 
States  District  Attorney."  It  appears  from  the  evidence 
that  the  following  document  is  on  file  in  the  office  of  the 
official  whose  name  is  attached: 

"TO  WHOM  IT  MAY  CONCERN: 

"This  is  to  certify  that  I  have  appointed  Robert  T.  Bryan,  Jr., 
Esquire,  as  Special  Assistant  District  Attorney  of  the  United  States 
to  act  for  the  Government  of  the  United  States  of  America  in 
criminal  proceedings  against  Jose  A.   Diaz. 

(Sgd.)     Chauncey  p.  Holcomb, 
United  States  District  Attorney. 
Shanghai,  China,  July  26,  1918." 

The  general  rule  is  that  a  prosecuting  attorney  has 
authority  with  the  approval  of  the  court  to  employ  special 


832  I  EXTRATERRITORIAL  CASES. 

counsel  to  assist  him.^  Special  assistants  for  Federal 
district  attorneys  in  the  United  States  are  expressly  ^ 
provided  for  whenever  in  the  opinion  of  the  Attorney 
General  "the  public  interest  requires  it."  As  respondent's 
counsel  concedes,  the  Secretary  of  State  must  be  substituted 
for  that  officer  in  dealing  with  the  District  Attorney  for 
China.  The  records  of  this  Court  show  that  the  present 
Acting  and  Special  District  Attorney  was  originally  ap- 
pointed by  the  Court  upon  authority  previously  received 
from  the  State  Department,  which  was  renewed  later  at 
the  request  of  the  regular  District  Attorney,  and  that  the 
former  took,  subscribed  and  filed  an  official  oath. 

The  proceedings  referred  to  in  the  District  Attorney's 
letter  of  appointment  of  July  26  led  not  merely  to  one 
prosecution  but  to  seven,  in  all  of  which  the  Special  As- 
sistant Attorney  so  appointed  appeared  as  prosecutor  with 
the  full  sanction  of  the  Court  and  without  objection  by 
any  one.  Later  his  services  were  continued  and  utilized 
in  other  proceedings  by  the  Acting  District  Attorney  who 
ultimately  prepared  and  signed  the  following: 

"TO  WHOM  IT  MAY  CONCERN: 

"This  is  to  inform  you  that  Robert  T.  Bryan,  Jr.,  is  the  Special 
Assistant  United  States  District  Attorney  of  the  United  States 
Court  for  China." 

This  was  not,  as  suggested  by  respondent's  counsel,  the 
delegation  of  delegated  power;  for,  as  has  been  said,  the 
State  Department  was  the  direct  source  of  the  Acting,  as 
well  as  of  the  regular,  District  Attorney's  authority.  It 
was  rather  the  statement  of  a  fact  and  the  recognition 
of  a  situation  which  had  existed  for  some  time  with  the 
Court's  knowledge  and  approval.  The  appointment,  in- 
deed, was  made  after  the  Court  had  left  for  sessions  on 
the  circuit  so  that  its  formal  sanction  was  not  obtained. 

'  State  V.  Bezou,  48  La.  Ann.,  1369,  20  So,,  892;  Stave  v.  Anderson, 
29  La.  Ann.,  774;  Sneed  v.  People,  38  Mich.,  348,  251;  Am.  &  Eng. 
Encyc.  of  Law  (2d  ed.),  XXIII,  273. 

'  U.  S.  Revised  Statutes,  sec.  363.  The  Act  of  May  28,  1896, 
Sess.  I,  29  U.  S.  Stats,  at  Large,  181,  Ch.  252,  sec.  8,  cited  by  re- 
spondent's counsel,  refers  to  regular  assistant  district  attorneys  and 
not  special  ones  as  in  this  case. 


IN  RE  KRISEL,  DEC.  6,    1918.  833 

But  upon  its  return,  learning  of  the  appointment,  the 
Court  was  pleased  to  approve  it  and  to  utilize  the  special 
attorney  so  designated  in  making  certain  investigations, 
the  regular  District  Attorney  having  meanwhile  gone  on 
leave.  But  such  formalities  as  commissions  and  oaths, 
however  necessary  they  may  be  for  the  regular  incumbents 
of  an  office,  especially  where  compensation  from  public 
funds  is  involved,  have  not  usually  been  required  for  those 
whose  employment  is  by  its  very  terms  casual  and  tem- 
porary. Recently  at  Tientsin  the  Court  had  occasion  in- 
formally to  call  upon  the  Judge  Advocate  of  the  Army 
to  act  as  Prosecuting  Attorney  and  previously  Special 
Attorneys  had  been  named  either  by  the  Judge  or  the 
District  Attorney  without  oath  or  commission.  Respond- 
ent's counsel  states  that  when  he  was  Special  United  States 
Attorney  he  thinks  he  was  given  a  written  appointment 
by  the  Court  and  he  thinks  that  he  filed  a  written 
oath.  A  careful  search  by  the  staff  of  this  Court  fails  to 
disclose  either  but  does  disclose  a  letter  written  to  said 
counsel  by  the  then  regular  District  Attorney  (Dr. 
Hinckley) ,  reciting  that  the  former 

"took  charge  at  my  request  of  prosecutions  in  two  actions  for  forgery 
against  P.  A.  Grimes," 

and  expressing  the  opinion  that 

"the  authority  of  this  office  under  the  Statutes  extends  to  engaging 
such  assistance." 

The  implication  seems  plain  that  no  other  authority  was 
invoked  in  that  instance  and  it  was  manifestly  less  formal 
than  that  of  the  present  accuser. 

II. 

We  have  said  this  much  in  justice  to  the  Special  Assist- 
ant District  Attorney  whose  authority  to  sign  as  such  has 
been  challenged  and  of  whose  right  thus  to  appear  we  have 
no  doubt.  But  we  are  equally  convinced  that  it  would 
have  made  no  difference  in  this  instance  if  he  had  not 
been  originally  appointed  by  the  regular  District  Attorney 
nor  his  services  utilized  and  continued  by  the  Acting  and 
Special  District  Attorney  with  the  knowledge  and   sanc- 

14008  O.  W. 53 


834  I  EXTRATERRITORIAL  CASES. 

tion  of  the  Court.  For  the  statute  under  which  this  pro- 
ceeding is  brought  expressly  provides  that  where  the  facts 
are  not  within  the  knowledge  of  the  court  the  proceeding 
"may  be  taken  upon  the  information  of  another."  ^  This 
would  not  even  require  the  moving  party  to  be  an  attorney- 
at-law,  and  if  respondent's  contention  were  sound  the  only 
effect  would  be  to  treat  the  phrase  "Special  Assistant 
United  States  District  Attorney"  as  surplusage  just  as 
respondent  now  asks  us  to  treat  a  part  of  the  information. 
For  respondent's  inquiry  as  to  who  is  his  accuser  is  an- 
swered by  the  information  itself  in  which  the  party  who 
signs  and  verifies  it  "accuses  Alexander  Krisel,"  etc. 

We  cannot,  therefore,  regard  this  motion  as  a  merito- 
rious one  and  as  it  avowedly  does  not  affect  the  merits  of 
the  case  and  as  the  accuser's  capacity,  whatever  it  might 
be,  could  not  prejudice  the  respondent,  the  motion  is  over- 
ruled. 

III. 

Respondent  also  files  a  motion  to  strike  from  the  in- 
formation the  following  excerpt  from  the  charge  to  the 
jury  in  H.  B.  M.  Supreme  Court  in  the  cause  in  which, 
it  is  alleged,  another  was  convicted  for  following  respond- 
ent's advice: 

"Now  we  come  to  Mr.  Krisel.  Mr.  Ki'isel's  evidence  is  undoubt- 
edly in  favor  of  the  accused.  If  you  were  to  follow  Mr.  Krisel's 
evidence  it  seems  to  me  you  would  be  pretty  well  bound  to  acquit 
the  accused.  The  Crown  Advocate  did  not  refer  to  him  in  his  reply, 
nor  did  Mr.  Jenkin,  and  I  think  that  it  was  perhaps  a  wise  for- 
bearance on  Mr.  Jenkin's  part  that  he  did  not  do  so.  You  will 
feel  at  once  that  if,  altho  he  happens  to  be  a  witness  for  the  Crown, 
he  was  the  accused's  own  lawyer,  you  ought  not  to  be  asked  to  treat 
him  as  hostile  to  the  accused,  as  a  witness  for  the  Crown  and  so 
to  follow  implicitly  what  he  said  in  order  to  discredit  the  case  for 
the  Crown.  He  was  wisely  left  out.  If  he  is  left  out,  we  are 
reduced  to  the  evidence  of  one  witness,  and  that  is  Sergt.  Woodfield." 

We  are  of  the  opinion  that  this  is  evidence  rather  than  a 
proper  part  of  the  information.     It  is  true  that  the  Supreme 


'Act   of   Congress   of   June   6,    1900,   Sess.    I,   31    U.    S.    Stats,   at 
Large,  450,  Ch.  786,  Tit.  II,  sec.  744. 


IN  RE  KRISEL,  DEC.   6,    1918.  835 

Court  has  held  *  that  formal  pleadings  are  not  required 
in  disbarment  proceedings.  That,  however,  was  before  the 
enactment  of  the  statute  just  cited,  and  where,  as  here, 
the  proceeding  was  instituted  by  a  formal  pleading  it 
seems  better,  in  order  to  avoid  making  unwise  precedents, 
to  follow  the  settled  rules.  The  motion  to  strike  is  there- 
fore sustained  but  without  prejudice  to  the  admissibility 
in  evidence  of  the  matter  therein  specified. 

Respondent's  application  for  an  extension  of  time  to 
December  10  for  answer  is  also  granted. 

On  December  10,  1918,  the  following  order  was  entered  in  the 
same   cause: 

A  demurrer  to  the  information  is  here  interposed  and  from  the  oral 
argument  of  counsel  it  appears  that  the  basis  of  the  first  two  grounds 
is  the  contention  that  the  deceit  and  misconduct  which  will  justify 
disbarment  must  have  been  committed  in  the  course  of  professional 
employment  and  toward  a  client.  We  find,  however,  that  the  Court  of 
Appeals  has  rejected  this  contention  in  a  decision  which  contrues  the 
identical  statute  under  which  this  proceeding  is  brought,  saying — 

"it  is  contended  that  the  'misconduct'  of  an  attorney  referred  to  in 
section  743  is  misconduct  in  his  relation  to  his  client  only,  and  not 
misconduct  in  his  relation  to  the  court.  We  find  no  ground  for  placing 
so  narrow  a  construction  of  the  statute.  An  attorney  owes  a  duty  to 
the  court  not  less  important  than  his  duty  to  his  client,  and  misconduct 
toward  the  judge,  whether  in  or  out  of  court,  is  not  less  reprehensible 
than  misconduct  toward  the  client.  But  if,  indeed,  the  offense  with 
which  the  plaintiff  in  error  is  charged  is  not  among  those  enumerated 
in  the  statute,  the  court  is  not  by  such  enumeration  deprived  of  its 
inherent  power  to  suspend  or  disbar  an  attorney  for  such  unprofes- 
sional conduct  as  renders  him  unworthy  to  be  a  member  of  the  bar."  ^ 

For— 

"It  is  not  only  for  professional  or  official  misconduct  in  the  capacity 
of  an  attorney  that  a  licensed  attorney  may  be  disbarred.  An  attorney 
may  be  suspended  or  disbarred  for  such  misconduct  unconnected  with 
his  professional  duties  as  shows  him  to  be  an  unfit  and  unsafe  person 
to  manage  the  legal  business  of  others." " 

Since,  then,  misconduct  in  general  is  a  sufficient  ground  for  disbar- 
ment it  would  seem  to  be  not  strictly  necessary  to  allege  or  prove  injury 
to  some  specific  person;  but  the  objection  here  that  the  information 
fails  to  show  "when,  how  or  in  respect  to  whom"  the  deceit  and  mis- 
conduct were  committed  appears  to  be  unfounded  as  the  information 

"Randall  v.  Brigham,  7  Wall.  (U.  S.),  523,  19  L.  ed.,  285;  Ex 
parte  Wall,  107  U.  S.,  265,  27  L.  ed.,  552. 

'  Cobb  V.  U.  S.,  172  Fed.,  641.  See  also  In  re  Terrell,  2  Phil- 
ippine, 266;  Ex  parte  Wall,  107  U.  S.,  265;  27  L.  ed.,  552. 

'  Corpus  Juris,  VI,  599,  600. 


836  I  EXTRATERRITORIAL  CASES. 

alleges  a  series  of  acts  commencing  on  September  10,  1918,  committed 
against  one  Yu  Zien  Chien  and  the  Standard  Oil  Company  involving 
the  bribery  of  the  latter's  employee  and  the  unlaw^ful  taking  of  its 
launch  w^ithout  its  knowledge  and  to  its  serious  damage. 

Another  ground  of  the  demurrer  is  that  the  charge  of  false  testi- 
mony by  the  respondent  is  insufficient  to  justify  disbarment,  the  argu- 
ment being  that  a  prior  conviction  of  the  offense  is  necessary.  But 
this  contention  is  likewise  foreclosed  by  the  Federal  decisions,^  and 
while  some  of  the  state  courts  may  hold  otherwise  ^  it  seems  doubtful 
if  even  a  majority  of  them  support  the  contention  of  respondent.' 
For,  as  was  observed  by  one  of  them  in  a  similar  proceeding: 

"If  the  accused  made  a  false  professional  statement,  or  swore  false, 
as  specified  in  the  accusation,  a  conviction  of  perjury  was  not  necessary 
to  justify  the  court  in  rejecting  him  from  the  bar." " 

Finding  no  merit  in  the  demurrer  it  is  overruled,  and  the  order  here- 
tofore made  as  to  date  of  answer  will  stand. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
MARY  M.  GuNN,  Plaintiff,  v.  Charles  C.  Gunn,  Defendant. 

[Cause  No.  706;  filed  December  13,  1918.] 

SYLLABUS. 

(By  the  Court.) 

1.  DIVORCE:   ADULTERY:  CORROBORATION  of  the  plaintiff's  testimony  as 

to  admissions  of  adultery  by  the  defendant  is  not  indispensable 
where  defendant,  knowing  of  the  charge  against  him,  fails  to 
traverse  it. 

2.  Id:   Custody  of  the  Children  cannot  be  controlled  absolutely  by 

stipulation  between  the  parties;  the  interests  of  the  children  are 
the  prime  consideration. 

Messrs.  Rodger  &  Haskell,  by  Mr.  Rodger,  for  plaintiff. 
M.  L.  Heen,  Esq.,  for  defendant. 

"  Ex  parte  Wall,  107  U.  S.,  265,  27  L.  ed.,  552 ;  hi  re  Ulmer,  208 
Fed.,  461,  467. 

*  B:ckn  r  v.  Ccmmonwealth,  126  Ky.,  318;  31  Ky.  L.  Reporter,  708; 
103  S.  W.,  378. 

^ Ex  parte  Walls,  64  Ind,,  461;  Ferry  v.  Stale,  3  Gie.ne  (la.),  550, 
and  other  state  decisions  referred  to  in  the  Federal  authorities  above 
cited. 

"Perry  v.  State,  3  Greene   (la.),  550,  552. 


GUNN  V.  GUNN,  DEC.  13,  1918.  837 

LOBINGIER,  J.: 

This  is  a  proceeding  for  divorce  on  the  grounds  of  adul- 
tery, intemperance  and  cruelty.  The  answer  is  in  effect  a 
general  denial  but  the  defendant  failed  to  appear  at  the  trial 
tho  he  was  represented  by  counsel.  The  plaintiff  testified 
to  excessive  intemperance  and  acts  amounting  to  cruel  treat- 
ment and  to  admissions  by  defendant  of  adulterous  relation's 
with  various  women.  The  only  other  witness  was  defend- 
ant's counsel  whose  testimony  tended  to  corroborate  rather 
than  otherwise  that  of  plaintiff,  but  even  had  it  been  un- 
corroborated plaintiff's  testimony  would  seem  to  be  suffi- 
cient under  the  circumstances.^ 

Plaintiff's  right  to  a  decree  of  absolute  divorce  is  not, 
however,  seriously  questioned  by  defendant's  counsel  and 
the  main  question  in  the  case  is  the  custody  and  maintenance 
of  the  three  children.  A  stipulation  is  presented,  signed  by 
counsel  for  both  parties,  agreeing  that  in  the  event  of  di- 
vorce two  of  the  children  shall  be  awarded  to  the  plaintiff 
and  the  third  to  the  defendant.  But  such  a  stipulation, 
while  entitled  to  consideration  by  the  Court,  is  binding  only 
so  far  as  it  coincides  with  the  interests  of  the  child.-  In 
this  case  the  child  which  it  is  proposed  by  stipulation  to 
turn  over  to  the  father  is  but  three  years  old.  The  father's 
home  is  at  Mukden  where  very  few  Americans  reside  and 
his  habits  according  to  the  testimony  are  such  as  to  make 
it  very  doubtful,  to  say  the  least,  if  he  is  a  proper  person 
to  bring  up  a  child.  Even  were  he  otherwise  the  child's 
natural  custodian  at  such  an  age  is  its  mother.  It  may  be 
that  when  the  child  is  older  it  can  be  returned  to  the  custody 
of  the  defendant  provided  he  meanwhile  makes  a  showing 
of  reform.     But  that  is  a  matter  for  future  consideration. 

'Ruling  Case  Law,  9,  sec.  240;  Sylvis  v.  Sylvis,  11  Colo.,  319,  17 
Pac,  912;  Baker  v.  Baker,  195  Pa.,  407,  46  Atl.,  96. 

'Lowrey  v.  Lowrey,  108  Ga.,  766,  33  S.  E.,  421;  White  v.  White, 
75  la.,  218,  39  N.  W.,  277;  Slattery  v.  Slattery,  139  la.,  419,  116  N. 
W..  608:  Pearce  v.  Pearce.  30  Mont..  269.  76  Pac,  289;  Connett  v. 
Ccnrett,  81  Neb.  777,  116  N.  W.  658. 


338  I  EXTRATERRITORIAL  CASES. 

The  petition  prays  for  "a  reasonable  sum  of  alimony  and 
also  a  reasonable  sum  for  maintenance  of  the  said  children." 
The  stipulation  contains  no  provision  on  that  point  but 
plaintiff  at  the  trial  disclaimed  any  desire  for  alimony  as 
such.  But  the  maintenance  of  the  three  children  of  tender 
age  is  another  matter  and  the  Court  would  be  derelict  in 
its  duty  should  the  decree  fail  to  provide  for  them.  The 
testimony  shows  that  the  defendant  is  earning  at  least  Yen 
350  per  month  with  probably  other  perquisites  and  it  is 
fair  neither  to  the  children  nor  to  the  mother  that  the 
father  should  assume  none  of  the  burden  of  maintenance. 
We  are  of  the  opinion  that  an  award  of  Yen  100  per  month 
is  a  very  moderate  allowance  for  such  a  purpose. 

A  statute  in  force  in  this  jurisdiction  provides: 

"Whenever  a  marriage  shall  be  declared  void  or  dissolved  the  court 
shall  have  pow^er  to  further  decree  as  follows: 

"First.  For  the  future  care  and  custody  of  the  minor  children  of 
the  marriage  as  it  may  deem  just  and  proper,  having  due  regard  to  the 
age  and  sex  of  such  children,  and  unless  otherwise  manifestly  improper 
giving  the  preference  to  the  party  not  in  fault.     *     *     * 

"Fifth.  For  the  appointment  of  one  or  more  trustees  to  collect, 
receive,  expend,  manage,  or  invest,  in  such  manner  as  the  court  shall 
direct,  any  sum  of  money  adjudged  for  the  maintenance  of  the  wife  or 
the  nurture  and  education  of  minor  children  committed  to  her  care  and 
custody."  ^ 

Exercising  the  authority  conferred  by  this  statute  as  well 
as  that  authorizing  an  absolute  divorce  on  the  ground  of 
adultery,*  it  is  hereby  considered  and  decreed : 

1.  That  the  bonds  of  matrimony  heretofore  existing  between  the 
plaintiff  and  defendant  be  dissolved;  that  the  plaintiff  be  granted  a 
divorce  a  vinculo  matriinonii  but  that  she  be  not  permitted  to  remarry 
within  six  months  from  date  of  this  decree  and  that  the  defendant  be 
not  permitted  to  remarry  at  all. 

2.  That  the  plaintiff  have  the  permanent  custody  of  the  children 
Emalita  Mary  and  Robert  William  and  the  temporary  custody  of  the 
remaining  child  Charles  Hugh,  the  latter  to  be  surrendered  to  the 
plaintiff  by  the  defendant  forthwith  subject  to  defendant's  right  to 

'  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  Tit.  II,  sec.  472. 

'Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  966. 


GUNN  V.  GUNN,  DEC.  13,  1918.  839 

apply  for  the  return  of  said  last  named  child  at  a  later  time  and  upon 
a  showing  of  reformation  on  the  part  of  said  defendant. 

3.  That  the  defendant  deposit  with  the  Clerk  of  this  Court  each 
month  the  sum  of  Yen  100  or  its  equivalent  in  Mexican  currency  for 
the  benefit  and  maintenance  of  said  children  and  especially  of  the 
last  named  child. 

4.  That  the  defendant  pay  the  costs  of  this  proceeding. 

On  February  11,  1919,  the  following  decree  was  rendered  in  Lane 
V.  Lane   (Cause  No.  726),  where  the  facts  were  somewhat  similar: 

This  cause  comes  on  for  hearing  upon  the  petition  and  the  evidence, 
the  defendant  having  failed  to  answer  or  otherwise  plead  tho  duly 
served  with  summons  and  having  failed  to  appear  after  being  called 
three  times  in  open  court. 

The  charge  of  adultery  rests  upon  the  testimony  of  the  plaintiff  to 
a  written  confession  made  by  the  defendant  and  to  his  affliction  with 
a  venereal  disease.  The  paper  embodying  the  alleged  confession  was 
also  shown  to  plaintiff's  attorney.  It  appears,  moreover,  that  de- 
fendant was  informed  of  this  charge  against  him  and  had  an  oppor- 
tunity to  refute  it,  of  which  he  has  failed  to  avail  himself.  As  in  a 
previous  case  (Gunn  v.  Gunn,  Cause  No.  706)  such  failure  must  be 
treated  under  the  circumstances  as  corroborating  the  charge. 

Two  children  of  tender  age  are  shown  to  have  been  born  to  the 
couple  and  for  the  present  the  wisest  disposition  of  them  would  seem 
to  be  to  leave  them  with  their  mother  at  least  until  a  better  arrange- 
ment can  be  made.  It  appears  that  the  defendant  is  receiving  Tls. 
500  a  month  and  plaintiff's  claim  of  Mexican  $200  a  month  for  the 
support  of  herself  and  the  children  seems  not  unreasonable  under  such 
circumstances. 

It  is  therefore  considered  and  decreed: 

1.  That  the  bonds  of  matrimony  heretofore  existing  between  the 
plaintiff  and  defendant  be  absolutely  dissolved;  that  the  plaintiff  be 
granted  a  divorce  a  vinculo  matrimonii  but  that  she  be  not  permitted 
to  remarry  within  six  months  from  the  date  of  this  decree  and  that  the 
defendant  be  not  permitted  to  remarry  at  all. 

2.  That  for  the  present  the  plaintiff  have  the  custody  of  the  two 
children  named  in  the  petition  but  that  said  arrangement  shall  be 
subject  to  further  order  if  it  appear  subsequently  that  a  change  in 
said  custody  is  to  the  best  interests  of  said  children;  and  that  mean- 
while defendant  be  permitted  to  visit  said  children  once  each  day  so 
long  as  he  conducts  himself  properly. 

3.  That  the  defendant  pay  to  the  Clerk  of  this  Court  monthly,  for 
the  support  of  plaintiff  and  of  said  children  the  sum  of  Mexican  .$200; 
the  distribution  of  said  amount  in  case  of  a  change  of  custody  as  above 
indicated  to  be  the  subject  of  further  order. 

4.  That  defendant  pay  the  plaintiff's  attorney  a  fee  of  Tls.  50,  and 
that  the  former  also  pay  the  costs  of  this  proceeding. 


840  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Chang  Quai  Ching  et  al.,  Appellants,  v.  Dodge  &  Seymour 
(China),  Ltd.,  Appellee. 

[Cause  No.  718;  filed  December  19,  1918.] 
SYLLABUS. 

(By  the  Court.) 

1.  CONTRACTS:  EMPLOYMENT:  QUANTUM  MERUIT.     Under  the  rule  pre- 

vailing in  this  and  the  majority  of  American  jurisdictions  an 
employee  may  recover  accrued  wages  regardless  of  the  time  of 
leaving  the  employment,  the  master  having  the  right  to  counter- 
claim in  case  of  wrongful  termination. 

2.  Id.  :  Id.  :  Custom  must  be  general  and  cannot  override  the  provisions 

of  positive  law. 

Messrs.  Rodger  &  Haskell,  for  appellants. 
No  appearance  in  this  Court  for  appellee. 

LOBINGIER,  J.: 

On  October  4,  1918,  five  Chinese  filed  their  petition  in 
the  Consular  Court  for  the  District  of  Shanghai  alleging 
that  they  had  "worked  for  the  defendant  company  *  *  * 
as  mechanic  fitters  in  their  motor  garage"  and  that  the  de- 
fendant owed  each  of  them  a  specified  amount  of  wages  of 
which  it  had  "absolutely  refused  payment." 

The  answer  admitted  the  employment  as  alleged  but 
averred : 

"that  the  term  of  such  employment  was  indefinite  but  with  the  right 
of  terminating  the  same  upon  a  month's  notice  as  required  by  local 
custom. 

"4.  That  the  said  plaintiffs  in  breach  of  the  terms  of  their  said 
employment  left  the  employ  of  the  defendant  without  defendant's 
consent  and  without  giving  one  month's  previous  notice  or  any  previous 
notice  of  their  intention  so  to  do. 

"5.  That  by  reason  of  the  acts  and  conduct  of  the  plaintiffs  as 
aforesaid  they  have  forfeited  all  wages  then  due  and  claimed  in  the 
petition  herein." 

The  Consular  Court  rendered  judgment  in  favor  of  the 
leading  plaintiff  who  left  at  the  end  of  the  month  but  denied 
recovery  to  the  four  others  who  now  bring  their  case  to 
this  Court  by  appeal.  We  find  no  evidence  in  the  record 
which  would  justify  us  in  holding  that  there  is  any  general 


CHANG  QUAI  CHING  V.  DODGE,  DEC.  19,  1918.  841 

custom  to  the  effect  that  an  employee  for  an  indefinite  term, 
such  as  this  is  conceded  to  have  been,  forfeits  accrued  wages, 
admittedly  earned,  by  leaving  upon  less  than  a  month's 
notice.  One  witness  testifies  to  such  a  practice  in  two 
garages  and  another  says  that  notice  of  ''at  least  half  a 
month  is  required"  in  his  garage.  But  this  is  far  from 
establishing  a  general  custom  thruout  the  locality.  On  the 
other  hand,  defendant's  former  superintendent  (Neuborg) 
testifies  that  there  is  no  such  custom  and  that  in  no  previous 
instance  for  the  last  six  years  has  defendant  so  refused 
payment.  Defendant's  manager  (Haughwout)  claims  that 
there  is  such  a  custom  but  admits  that  he  "can't  mention 
a  specific  case"  and  that  the  matter  "was  handled  by 
Neuborg"  who  contradicts  Haughwout's  other  claim  that 
plaintiffs  were  hired  "by  the  month."  There  is  also  a  con- 
tradiction between  Haughwout  and  several  of  the  plaintiffs 
who  claim  that  they  gave  notice  to  him  some  days  before 
leaving. 

"Evidence  of  isolated  instances  of  a  certain  course  of  trade  is  not 
sufficient  to  establish  a  usage  by  which  the  rights  of  parties  are  to  be 
measured  and  determined." ' 

But  even  if  such  a  custom  as  defendant  alleges  had  been 
established  it  could  not  apply  here  because  it  conflicts  with 
the  American  law  in  force  in  this  jurisdiction."  Nearly  a 
century  ago  the  Supreme  Court  of  New  Hampshire,  in 
a  leading  case,^  repudiating 

"the  technical  reasoning  that  the  performance  of  the  whole  labor 
is  a  condition  precedent,  and  the  right  to  recover  anything  dependent 
upon  it," 

announced  a  new  rule 

"binding  the  employer  to  pay  the  value  of  the  service  he  actually 
receives,  and  the  laborer  to  answer  in  damages  where  he  does  not 
complete  the  entire  contract." 

This  is  merely  an  application  of  the  Scriptural  maxim 
"The  laborer  is  worthy  of  his  hire"  and  it  is  now  the  general 


^Cyc.  XII,  1040. 

-  Id.,  1054.     Cf.  J.  Spunt  &  Co.  v.  American  Machinery  &  Export 
Co.,  ayite  p.  778. 

'Britton  v.  Turner,  6  N.  H.,  481,  26  Am.  Dec,  713   (1834). 


842  I  EXTRATERRITORIAL  CASES. 

rule  in  America  *  including  the  Federal  Courts.^  Under  it 
plaintiffs  are  entitled  to  recover  their  wages  for  the  time 
they  actually  worked  and  defendant  would  have  been  entitled 
to  plead  a  counter-claim  for  any  damage  which  actually  re- 
sulted from  plaintiffs'  departure.  No  such  counter-claim 
was  pleaded,  however,  and  no  reason  appears  why  plaintiffs 
should  not  have  the  full  amounts  due  them.  The  amounts, 
indeed,  are  small  but  that  is  all  the  more  reason  why  they 
should  have  been  paid  promptly.  There  is  some  suggestion 
in  the  testimony  that  plaintiffs  left  to  join  a  rival  concern 
but  as  their  employment  was  admittedly  indefinite  this 
would  afford  no  excuse,  legal  or  moral,  for  withholding  their 
wages.  In  view  of  the  long  delay  we  feel  that  plaintiffs 
are  also  entitled  to  interest  from  the  date  when  they  should 
have  been  paid." 

The  judgment  of  the  Consular  Court  is  accordingly  re- 
versed as  to  all  of  the  appellants  and  it  is  further  considered 
and  adjudged  that  each  of  them  have  and  recover  from  de- 
fendant the  full  amount  claimed  by  each  in  the  joint  petition 
with  interest  thereon  at  six  per  cent  per  annum  from  the 
date  of  terminating  the  employment,  and  his  proportion  of 
the  costs  of  both  courts. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  John  Kavanaugh's  Estate. 

[Cause  No.  715;  filed  December  23,  1918.] 

SYLLABUS. 
(By  the  Court.) 

I.WILLS:  Holographic  wills  are  those  written  entirely  in  the  hand- 
writing of  the  testator  or  at  least  containing  sufficient  matter 
so  written  as  to  constitute  a  complete  instrument. 


*  Page  on  Contracts,  III,  sec.  1604,  and  see  Steiner  v.  Frazar  &  Co., 
ante,  p.  249. 

'  McDonough  v.  Evans  Marble  Co.,  112  Fed.,  634,  referring  to  it  as 
"the  more  modern  rule  laid  down  in  Britton  v.  Turner,  6  N.  H.,  481, 
26  Am.  Dec,  713,  and  followed  by  the  great  weight  of  authority  in  this 
country  since." 

"  Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  Sess, 
II,  Ch.  854,  sees.  1184,  1185;  cf.  Act  of  Congress  of  June  6,  1900,  31 
U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  Ill,  sec.  255. 


IN  RE  KAVANAUGH'S  ESTATE,  DEC.  23,  1918.  843 

2.  Id.  :     Where  the  instrument  is  partly  printed  and  partly  written 

and  the  latter  portion  is  not  complete  in  itself  it  is  not  entitled 
to  probate. 

3.  Id.  :  Administration.     In  such  a  case  ordinary  letters  of  adminis- 

tration  will  be   issued   and   the   estate   administered   according 
to  the  rules  of  intestate  succession. 


LOBINGIER,  /.  ; 

An  instrument  is  presented  for  probate  as  the  last  will 
and  testament  of  the  late  John  Kavanaugh.  It  consists  of 
a  printed  blank  with  insertions  in  the  handwriting  of  the 
said  deceased  and  is  signed  by  him  but  not  witnessed. 

This  Court  has  probated  holographic  wills  ^  but  such  a 
will  is  defined  as  one  written  entirely  by  the  deceased.^ 
Where  the  instrument  was,  as  here,  partly  so  written  and 
partly  printed,  but  unattested,  probate  was  denied,  the 
court  saying: 

"The  paper  before  us  was  not  entirely  written  by  the  hand  of  the 
deceased.  Portions  of  it  were  printed.  The  Legislature  has  seen  fit 
to  prescribe  forms  requisite  to  an  olographic  will,  and  these  forms 
are  made  necessary  to  be  observed.  It  was  strenuously  urged  before 
us  that  the  portions  of  the  paper  which  were  written  by  the  de- 
ceased should  be  admitted  to  probate,  omitting  the  printed  portions. 
We  are  not  at  liberty  to  so  hold.  We  should,  thereby,  in  effect,  change 
the  statute,  and  make  it  read  that  such  portions  of  an  instrument 
as  are  in  the  handwriting  of  the  deceased  constitute  an  olographic 
will.  The  instrument,  in  its  entirety,  is  before  us.  It  was  not  en- 
tirely written  by  the  hand  of  the  deceased." ' 

There  is,  indeed,  some  authority  *  for  the  proposition  that 
where  the  handwritten  portion  is  complete  in  itself  it  may 
be  considered  as  sufficient  and  the  printed  part  rejected  as 


^  In  re  Allen's  Will,  ante,  p.  92;  In  re  Lucy  Lucker's  Will,  ante, 
p.  626. 

'Louisiana.     Heirs  of  Williams  v.  Hardy,  15  La.  Ann.  286. 

Mississippi.     Davis    v.    Williams,    57    Miss.    843. 

Tennessee.     Tate  v.  Tate,  11  Humph.  464. 

Virginia.     Gibson  v.  Gibson,  28  Gratt.  44. 

Cyc.  XL,  996,  1129. 

'  Estate  of  Rand,  61  Cal.  468,  44  Am.  Rep.,  555.  See  also  Estate 
of  Billings,  64  Cal.  427;  Estate  of  Plumel,  151  Cal.  77,  121  Am.  St. 
Rep.,  100. 

*  Heirs  of  McMichael  v.  Bankston,  24  La.  Ann.  451 ;  Baker  v. 
Brown,  83  Miss.  793,  36   So.  539. 


344  I  EXTRATERRITORIAL  CASES. 

surplusage.  But  this  is  contrary  to  the  decision  above 
quoted  and  it  would  make  no  difference  here  for  the  hand- 
written portions  are  not  complete  and  would  constitute  no 
intelligible  instrument  if  considered  apart  from  the  printed 
portion. 

We  have  no  alternative,  therefore,  but  to  hold  that  the 
instrument  °  before  us  is  not  entitled  to  probate  but  the 
petition,  which  prays  the  appointment  of  an  administrator 
cum  testamento  annexo,  may  be  granted  to  the  extent  of 
issuing  ordinary  letters  of  administration. 

We  find  from  the  evidence : 

1.  That  the  deceased  was  a  citizen  of  the  United  States  of  America 
who  died  at  Manila,  Philippines,  on  October  21,  1918. 

2.  That  at  the  time  of  his  death  he  was  a  resident  of  Shanghai, 
China,  and  had  property  within  the  territorial  jurisdiction  of  this 
Court  of  greater  value  than  $500  United  States  currency; 

3.  That  Howard  Upton,  Esquire,  a  brother-in-law  of  the  deceased 
and  whose  appointment  is  asked  by  the  latter's  widow,  is  the  proper 
one  to  be  appointed  administrator. 

It  is  accordingly  considered  and  decreed  that  Letters  of  Adminis- 
tration issue  to  the  said  Howard  Upton  upon  his  taking  the  oath, 
submitting  himself  to  the  jurisdiction  of  this  Court,  and  executing  a 
bond  as  required  by  law. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

In  re  John  Wright  Davis'  Will,  Cause  No.  573;  In  re 
Alice  Parker  Davis'  Estate,  Cause  No.  633. 

[Filed  January  20,   1919.] 

SYLLABUS. 

(By  the  Court.) 

1.  EVIDENCE:    PRESUMPTIONS.     Marital  status  once  shown  to  exist  is 

pi'esumed  to  continue  and  any  person,  especially  a  female,  is 
presumed  to  be  unmarried  in  the  absence  of  proof  to  the  con- 
trary. 

2.  WILLS:   Interpretation.     Under  the  maxim  Nemo  haeres  viventis 

est  a  bequest  to  a  person  "or  his  heirs"  is  equivalent  to  a  be- 
quest to  him  if  he  is  living. 
3.  Id.:  Id.     Where  a  brother  and  a  sister  are  named  in  a  will  as  "my 
two  children"  and  are  made  the  sole  beneficiaries,  and  the  latter 

"  A  valid  will  was  afterward  discovered  and  probated. 


n 


IN  RE  DAVIS'  WILL,  JAN.  20,  1919.         845 

dies  intestate  before  distribution,  the  former  takes  her  entire 
estate  including  her  share  under  the  will. 


LOBINGIER,  /.  ; 

Petitions  are  presented  in  each  of  these  causes  for  leave 
to  make  final  distribution  and  for  the  personal  represen- 
tative's discharge,  the  latter  claiming  as  the  distributee  in 
each  instance.  The  will  heretofore  admitted  to  probate  in 
Cause  No.  573  bequeaths  the  entire  estate  "into  two  equal 
parts  *  *  *  to  each  of  my  two  children,  John  Ker 
Davis  and  Alice  Parker  Davis."     It  further  provides : 

"In  case  Alice  should  die  unmarried  let  the  entire  property  be 
given  to  John  Ker  or  his  heirs  i.  e.  widow  or  child  or  children. 

"In  case  Alice  should  marry  and  die  leaving  child  or  children  said 
child  or  children  shall  receive  Alice's  share." 

Alice  Parker  Davis  died  intestate,  according  to  proof 
on  file,  in  November,  1917,  and  it  is  her  estate  which  is  being 
administered  as  Cause  No.  633.  From  the  language  of  the 
will  above  quoted  it  is  evident  that  at  the  date  of  its  execu- 
tion, October  10,  1912,  she  was  unmarried  and  while  there 
is  no  other  express  proof  that  she  so  continued  at  the  time 
of  her  death  the  rule  is  that  a  status  once  proven  to  exist  con- 
tinues ^ — a  presumption  which  is  strengthened  in  this  case 
by  the  fact  that  she  was  still  known  by  her  maiden  name 
at  the  time  of  her  death.  Moreover,  anyone,-  particularly  a 
female,^  is  presumed  to  be  unmarried  unless  the  contrary 
appears.  Under  the  express  terms  of  the  will,  therefore, 
what  would  have  been  her  share  passes  to  her  brother  **or 
his  heir's,"  but  in  view  of  the  maxim  Nemo  haeres  viventis 
est  *  this  phrase  is  equivalent  to  bequeathing  the  property 
to  the  brother  in  case  he  is  living.  The  designation  in  the 
will  of  the  brother  and  sister  as  "my  two  children"  also 
appears  to  be  sufficient  proof  of  the  petitioner's  averment 
that  he  is  her  surviving  next  of  kin. 

'  Moore  v.  Ry.  Co.,  173  Mass.,  335,  53  N.  E.,  816,  Thayer's  Cases,  51. 
"■  Lackland  v.  Nevins,  3  Mo.  App.,  336 ;  Gaunt  v.  State,  50  N.  J.  L., 
490. 

'  People  V.  Martinez,  13  Porto  Rico,  246. 
'Broom's  Legal  Maxims   (8th  ed.),  522. 


846  I  EXTRATERRITORIAL  CASES. 

The  statute  which  governs  distribution  in  such  cases  reads 
as  follows: 

"If  there  be  a  brother  or  sister,  or  child  or  descendant  of  a  brother 
or  sister,  and  no  child,  descendant,  or  father  or  mother  of  the  in- 
testate, the  said  brother,  sister,  or  child  or  descendant  of  a  brother 
or  sister  shall  have  the  whole."  ^ 

The  brother  being  one  of  the  two  original  beneficiaries 
named  in  the  will,  with  a  contingent  interest  in  his  sister's 
share,  and  she  having  died  meanwhile  without  issue,  it  is 
evident  from  the  foregoing  that  he  is  entitled  to  the  entire 
assets  of  both  estates. 

It  is  accordingly  considered  and  decreed  that  the  personal 
representative  in  each  cause,  after  payment  of  all  claims 
against  either  estate  presented  within  the  time  required  by 
law,  proceed  to  distribute  the  entire  assets  to  the  petitioner 
John  Ker  Davis  and  that  said  personal  representative  be 
discharged  upon  filing  with  the  clerk  of  this  Court  a  receipt 
in  full  from  the  petitioner  for  all  of -said  property  and  a 
further  showing  that  all  of  such  claims  have  been  paid. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Alexander  Krisel. 

[Cause  No.  705,  filed  February  14,  1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  EVIDENCE  at  a  former  trial  may  be  proved  by  a  transcript  sworn 

to  be  correct  by  the  stenographer  who  need  not  be  an  official 
one. 

2.  Id.  :  Burden  of  Proof.     The  possessor  of  another's  property,  taken 

without  the  owner's  consent,  has  the  burden  of  showing  that 
his  possession  is  innocent. 

3. ATTORNEYS:  DISBARMENT:  MISCONDUCT  OR  Deceit  need  not  be 
practiced  toward  a  client  nor  in  the  course  of  technical  profes- 
sional employment,  in  order  to  justify  disbarment  under  31 
U.  S.  Stats,  at  Large,  Ch.  786,  sec.  743. 

4.  Id.  :  Misconduct.  An  attorney  who  uses,  for  pursuing  a  defend- 
ant in  civil  action,  another's  launch,  obtained  without  the  ovnier's 


"Act  of  Congress  of  March  3,  1901,   Sess.  II,  31   U.  S.   Stats,  at 
Large,  Ch.  854,  sec.  381. 


IN  RE  KRISEL,  FEB.  14,  1919.  847 

knowledge  or  consent,  by  the  payment  of  an  unusual  sum  to  one 
who  was  understood  not  to  be  the  owner  nor  to  have  authority  to 
hire,  and  who  violates  the  owner's  orders  with  the  result  that 
the  launch  is  wrecked,  is  guilty  of  such  misconduct,  especially 
where  he  ignores  marks,  facts  and  circumstances  which  should 
put  him  upon  inquiry. 
5.  Id.  :  Deceit  may  include  suppressio  veri  as  well  as  suggestio  falsi 
and  where  in  testifying  or  otherwise  the  attorney  fails  to  state 
fully  and  fairly  his  part  in  the  affair  and  the  extent  of  his 
knowledge  thereof,  he  is  guilty  of  deceit. 

Robert  T.  Bryan,  Jr.,  Esq.,  Special  Assistant  U.  S.  Atty., 
for  the  information. 
Respondent,  pro  se. 

LOBINGIER,  J.: 

This  is  a  proceeding  for  disbarment.  The  pleading  by 
which  it  was  begun  alleges : 

"That  on  or  about  the  10th  day  of  September,  1918,  an  action 
was  instituted  in  the  International  Mixed  Court  at  Shanghai,  China, 
by  Judah  I.  Ezra  against  one  Yu  Zien  Chien  for  damages  for  libel 
and  slander  printed  in  the  Shanghai  Gazette,  and  that  the  plaintiff 
believing  that  the  said  Yu  Zien  Chien  was  about  to  leave  the  juris- 
diction of  the  said  International  Mixed  Court  at  Shanghai,  China, 
obtained  a  warrant  in  the  nature  of  a  special  summons  for  the  arrest 
of  the  said  Yu  Zien  Chien  and  did  on  the  date  aforesaid  together  with 
Ellis  Ezra  and  Sergt.  Woodfield  depart  on  the  tender  Alexandra  for 
Woosung  to  the  steamship  China  which  was  anchored  there,  believing 
that  the  said  Yu  Zien  Chien  was  about  to  depart  from  the  jurisdic- 
tion of  the  said  Mixed  Court;  and  that  upon  boarding  the  said  steam- 
ship China  the  said  Judah  I.  Ezra,  Ellis  Ezra  and  the  said  Sergt. 
Woodfield  were  unable  to  find  the  said  Yu  Zien  Chien  or  to  serve 
upon  him  the  warrant  which  was  out  for  his  arrest,  and  that  they 
then  and  there  returned  to  Shanghai  on  the  said  tender  Alexandra 
and  that  upon  arriving  at  Shanghai,  China,  the  said  Ellis  Ezra  was 
met  by  the  said  Alexander  Krisel,  who  advised  and  counseled  him, 
the  said  Ellis  Ezra,  in  the  capacity  of  his  attorney  and  counselor- 
at-law,  to  hire  a  private  launch  and  return  to  Woosung  to  the  steam- 
ship China  and  serve  upon  the  said  Yu  Zien  Chien  the  said  warrant, 
and  that  said  Ellis  Ezra  did  then  and  there  take  the  advice  of  the 
said  Alexander  Krisel,  and  requested  the  said  Sergt.  Woodfield  to 
return  to  the  said  steamship  China  which  the  said  Sergt.  Woodfield 
agreed  to  do  provided  a  launch  could  be  obtained;  and  the  said  Ellis 
Ezra,  counseled,  aided  and  abetted  by  the  said  Alexander  Krisel, 
did  then  and  there  attempt  to  obtain  a  launch  on  the  Bund  at  Shang- 
hai, China,  by  corruptly  offering  money  as  a  bribe  or  reward  to  the 


848  I  EXTRATERRITORIAL  CASES. 

laodahs  thereof,  and  that  after  several  attempts  the  said  Ellis  Ezra, 
aided,  abetted  and  counseled  by  the  said  Alexander  Krisel,  unlaw- 
fully and  corruptly  bribed  the  laodah  of  the  Mei  Foo  IV,  whose  name 
is  Zung  Lao  Hung  and  who  is  in  the  employ  of  the  Standard  Oil 
Company,  to  take  them  to  Woosung  (the  said  Mei  Foo  IV  being  a 
launch  owned  by  the  Standard  Oil  Company),  in  the  amount  of  two 
hundred  dollars  ($200),  the  said  Ellis  Ezra  and  the  said  Alexander 
Krisel,  well  knowing  that  Zung  Lao  Hung,  the  laodah  of  the  said 
Mei  Foo  IV,  did  not  have  authority  to  take  the  said  boat  to  Woosung 
and  that  the  said  boat  was  either  a  foreign  or  Chinese  owned  boat, 
or  that  it  belonged  to  the  Standard  Oil  Company;  and  the  said  Alex- 
ander Krisel  did  then  and  there  in  company  with  the  said  Sergt. 
Woodfield  and  one  Hope  proceed  to  Woosung  to  attempt  to  arrest 
the  said  Yu  Zien  Chien  by  virtue  of  the  warrant  hereinbefore  men- 
tioned, but  owing  to  the  inclemency  of  the  weather  the  said  Mei  Foo 
IV  was  wrecked  upon  the  breakwater  at  Woosung;  and  that  on  ac- 
count of  the  said  conduct  of  the  said  Ellis  Ezra  and  the  said 
Alexander  Krisel,  the  said  Ellis  Ezra  was  prosecuted  on  or  about 
the  18th  day  of  September,  1918,  in  the  British  Police  Court  at 
Shanghai,  China,  upon  the  following  charge: 

'For  that  he  on  the  10th  day  of  September,  1918,  at  Shanghai  did 
conspire  with  a  Chinese  'go-between'  and  others,  whose  names  are 
to  the  prosecution  unknown,  to  unlawfully  and  corruptly  give  or  agree 
to  give  or  offer  to  one  Zung  Lao  Hung  a  servant  of  the  Standard 
Oil  Company  of  New  York  a  gift  or  consideration  of  Mexican  Dollars 
two  hundred  as  an  inducement  or  reward  for  permitting  him  the 
said  Ellis  Isaac  Ezra  to  make  use  of  the  launch  Meifoo  No.  U  the 
property  of  the  Standard  Oil  Company  of  New  York  for  his  own 
purposes,  contrary  to  the  Statute  6,  Edward  7;  c.  34;  Section  1,' 
and  bound  over  for  trial  in  the  British  Supreme  Court  at  Shanghai, 
China;  and  after  due  consideration  by  a  duly  empaneled  jury  in  said 
British  Supreme  Court  the  said  Ellis  Ezra  was  convicted  on  or  about 
the  15th  day  of  October,  1918,  of  the  aforementioned  charge  and  fined 
two  thousand  dollars;  and  if  the  said  Alexander  Krisel  had  been  sub- 
ject to  the  jurisdiction  of  the  said  British  Supreme  Court  he  could 
have  been  convicted  together  with  the  said  Ellis  Ezra  on  the  charge 
aforesaid;  and  in  the  trial  of  the  case  aforementioned  the  said  Alex- 
ander Krisel  was  called  as  a  witness  and  *  *  *  testified  falsely, 
the  matters  so  testified  being  material  to  the  case  and  wilfully  false; 
for  the  jury  would  have  acquitted  the  said  Ellis  Ezra  had  they  be- 
lieved the  said  Krisel's  testimony  *  *  *  ^^^  ^j^^t  the  said  Alex- 
ander Krisel  by  all  of  such  acts,  conduct  and  testimony  as  herein 
set  forth  is  guilty  of  willful  deceit  and  willful,  fraudulent,  and  un- 
professional misconduct,  unseeming  and  unfitting  for  an  attorney  and 
counsellor-at-law  to  commit  and  contrary  to  the  laws  of  the  United 
States  of  America." 


IN  RE  KRISEL,  FEB.  14,  1919.  849 

Respondent's  answer  contains  no  general  denial  and  while 
there  are  specific  denials  of  deceit,  misconduct,  etc.,  it  is 
not  seriously  disputed  that  the  main  events  outlined  above 
actually  occurred.  At  the  hearing,  the  Special  Assistant 
District  Attorney  who  filed  the  information  and  conducted 
the  case  in  support  of  it  offered  in  evidence  transcripts  of 
the  testimony  of  respondent  and  Sergt.  Woodfield  at  the 
trial  above  mentioned  in  the  British  Court.  These  and 
other  offers  of  evidence  were  objected  to  but  in  order  not 
to  delay  the  trial  rulings  on  some  of  them  were  reserved. 
Respondent  states  in  his  brief  that  he  has  prepared  it  on 
the  assumption  "that  the  Court  is  going  to  admit  all  the 
evidence  introduced  by  the  prosecution."  Such  being  the 
case  and  the  rule  being  that  in  trials  to  the  court  alone 
error  may  be  committed  by  rejecting,  but  never  by  admit- 
ting, evidence  ^  (since  the  court  is  presumed  to  be  able 
to  discriminate  between  what  is  and  what  is  not  properly 
considered),  we  shall  treat  respondent's  undisposed  of  ob- 
jections and  motions  to  strike  as  overruled. 

The  testimony  in  the  British  Court  was  not  only  relevant 
but  indispensable  in  order  to  decide  the  issue  of  false  swear- 
ing raised  by  the  pleadings  and,  therefore,  constituted  in 
itself  a  substantive  fact  -  while  much  of  respondent's  own 
testimony  there  (Ex.  B.)  was  also  competent  as  admissions 
The  objection  "that  there  are  no  official  stenographers" 
in  that  court  is  of  course  not  valid.  For  the  Federal 
Courts  in  America  do  not  all  have  official  stenographers 
and  they  require  no  more,  even  in  a  criminal  case,  than 

"a  copy  of  the  stenographic  report  of  the  entire  former  testimony, 
supported  by  the  oath  of  the  stenographer  that  it  is  a  correct  tran- 
script of  his  notes  and  of  the  testimony."  * 

Here  such  "oath  of  the  stenographer"  was  given  in  the 
form  of  testimony  which  also  showed  his  thirteen  years' 


'  Fuentes  v.  Gaines,  25  La.  Ann.,  87;  Andrews  v.  Johnston,  7  Col. 
App.,  551,  44  Pac,  73.     Cf.  16  Cyc,  1114,  note  33. 

■  McKelvey,  Evidence    (2nd.  ed.),  sec.  148. 

'Mattox  V.  U.  S.,  156  U.  S.,  237,  39  L.  ed.,  409.  Cf.  Chicago  etc. 
R.  Co.  V.  Myers,  80  Fed.,  361;  16  Cyc,  1108. 

14008   O.   W. 54 


850  I  EXTRATERRITORIAL  CASES. 

experience  in  stenography.  Moreover  his  notes,  as  those  of 
a  disinterested  witness,  are  clearly  more  reliable  than  re- 
spondent's unaided  recollection  of  which  he  does  not  even 
claim  to  be  positive,  but  which  is  the  sole  basis  for  ques- 
tioning certain  features,  mostly  unimportant,  of  the  tran- 
script. 

There  was  some  discussion  at  the  trial  as  to  the  capacity 
in  which  respondent  acted  on  the  night  in  question  and 
his  own  versions  thereof  appear  to  be  conflicting.  Accord- 
ing to  General  Manager  Sprague  of  the  Standard  Oil 
Company,  to  whom  respondent  went  the  morning  after  the 
wreck : 

"In  response  to  my  question  he  stated  that  he  acted  entirely  as  a 
friend  in  this  matter;  that  he  received  no  recompense  for  his  service." 

Later,  before  the  British  Court  respondent  testified: 

"Q.  You  were  one  of  the  party,  were  you  not,  which  went  to  Woo- 
sung  on  the  night  of  September  10? 
A.  I  was. 

Q.  At  that  time  you  were  acting  as  legal  adviser  for  Ellis  Ezra? 
A.  I  was." 

It  appears  moreover  that  some  time  later,  but  before 
these  proceedings  were  begun,  respondent  sent  to  the  party 
last  named  a  bill  for  $5,000  for  legal  services  which  was 
characterized  as  "some  bill"  in  a  letter  (Ex.  F.)  which 
the  former  signed  and  sent  respondent  in  reply  and  which 
further  contained  the  following: 

"I  consider  that  instead  of  me  owing  you  any  money  I  have  good 
cause  of  action  against  you  as  the  sole  responsible  person  for  all  the 
trouble  I  have  had  for  the  Meifoo  adventure. 

"You  will  remember  that  when  the  tender  came  back  from  Woo- 
sung,  I  intended  to  drop  the  matter  and  go  home.  You  on  the  con- 
trary urged  that  had  you  been  asked  to  direct  the  operations,  the 
thing  would  have  been  successful  as  you  had  had  previous  experience 
on  similar  matters  as  an  American  Vice  Consul,  and  you  insisted 
that  a  private  launch  be  hired  and  the  China  visited  again,  with  the 
result  that  I  found  myself  in  a  nice  mess — sued  criminally  and  facing 
a  civil  case  to  come." 

"I  want  also  to  emphasize  that  apart  from  the  above  action  on 
your  part  I  have  had  from  you  no  other  legal  assistance  in  any  shape 
or  form. 

"How  you  can  dare  to  think  that  you  are  entitled  to  such  a 
compensation    for   your    services    surpasses   my   imagination.     I    can 


IN  RE  KRISEL,  FEB.  14,  1919.  851 

only  say  that  I  wish  I  had  not  met  you  that  evening  or  had  had  less 
confidence  in  your  ability  and  knowledge." 

The  signer  of  this  letter  testified  as  follows : 

"Q.  Who   wrote    that   letter? 

A.  I   did. 

Q.  The  first  letter? 

A.  I  did;  which  one? 

Q.  Under  d-te  November  14,  1918— Ex.  'F.' 

A.  I   don't  think  it  is  necessary  for  me  to  say. 

Q.  It  wouldn't  do  any  harm;  did  you  write  it  yourself? 

A.  Rather    not    answer    the    question. 

Mr.  Bryan :  I  think  he  testified  that  he  signed  the  letter. 

The  Court:   Did  you  sign  the  letter? 

A.  I  did. 

The  Court:  Was  it  sent  out  with  your  approval  and  knowledge? 

A.  Yes,  my  approval  and  my  sentiments. 

The  Court:  Do  you  mean  to  say  that  some  one  else  copied  the 
letter? 

A.  No;  I  saw  my  legal  adviser,  one  of  my  legal  advisers,  and 
put  the  proposition  before  him,  gave  him  the  facts  and  he  drafted 
the   letter. 

The  Court:  You  signed  it  and  sent  it  out? 

A.  I  did  and  sent  it  out.  They  were  my  sentiments  and  exactly 
as  I  directed  my  lawyer  to  write." 

In  view  of  this  it  would  have  been  clearly  improper  to 
have  compelled  him  to  disclose,  over  his  objection,  the 
name  of  one  who  he  said  drafted  the  letter;  for  that  was 
wholly  immaterial.  The  correspondence  is  chiefly  valuable 
as  revealing  the  real  relation  of  the  parties  at  the  time 
it  was  written.  Respondent  claims  that  it  was  "repudiated" 
by  another  (Ex.  3)  from  the  same  party  five  days  later. 
But  the  latter  neither  withdraws  nor  qualifies  a  single  state- 
ment in  the  former  and  the  client's  opinion  of  the  disbar- 
ment proceedings  is  not  competent  evidence  and  must  there- 
fore be  excluded.  In  the  interval  between  the  letters  the 
two  seem  to  have  reconciled  their  differences  over  the  fee 
and  the  client  was,  on  the  whole,  a  favorable  witness  for 
the  respondent,  tho  still  maintaining  that  he  would  not 
have  entered  into  the  transaction  but  for  the  latter. 

Notwithstanding  the  statement  that  he  had  rendered  "no 
other  legal  assistance"  respondent  testified  that  he  had  been 
consulted  frequently  by  the  signer  of  the  letter  and  had 


352  I  EXTRATERRITORIAL  CASES. 

assisted  the  latter's  lawyer  in  the  British  Court,  tho  he 
admitted  not  having  appeared  of  record.  He  claims  that 
his  bill  was  for  such  services  and  that  it  was  not  out  of 
proportion  to  what  was  charged  by  the  other  lawyers.  We 
are  not  concerned  here,  as  its  recipient  was,  with  the  amount 
of  the  bill  but  it  seems  difficult  to  believe,  on  the  face  of  it, 
that  said  amount  was  not  intended  to  include  the  services, 
whatever  they  were,  of  September  10  and  at  any  rate 
respondent's  ov^m  evidence  discloses  the  relation  of  attorney 
and  client  at  the  time.  It  has  already  been  shown,  in 
ruling  upon  the  demurrer,  that  the  misconduct  which  will 
justify  disbarment  need  not  be  in  relation  to  a  client,*  but 
here  the  client,  in  the  letter  above  quoted,  did  complain. 
And  certainly  if  respondent  "acted  entirely  as  a  friend" 
he  was  not  only  a  most  energetic  one  but  his  services  were 
wholly  in  a  legal  matter.  For  the  sole  purpose  of  the  un- 
fortunate enterprise  in  which  he  engaged  so  zealously  was 
to  effect  the  atirest  of  a  defendant  in  a  purely  civil  action. 

II. 

It  was  reiterated  in  oral  argument  and  again  in  respond- 
ent's brief,  that  there  is  nothing  wrong  in  hiring  a  launch. 
But  that  depends  upon  the  circumstances.  There  is  nothing 
wrong,  of  course,  in  hiring  a  launch  from  the  owner  for 
a  lawful  purpose,  which  is  another  way  of  saying  that  there 
is  nothing  wrong  in  doing  what  is  right.  But  to  hire  one 
which  is  not  for  hire ;  to  deal  exclusively  with  a  mere  servant 
in  the  owner's  absence  and  without  his  knowledge;  to 
induce  the  former,  by  offering  a  large  sum  of  money,  to 
betray  his  trust,  use  the  launch  in  forbidden  ways  and 
undertake  a  voyage  that  caused  its  destruction  is  a  very 
different  matter  indeed  and  if  done  by  a  member  of  the 

*  The  following'  are  a  few  of  the  cases  where  nothing  was  done 
adversely  to  a  client: 

Federal.  Ex  parte  Wall,  107  U.  S.  265,  27  L.  ed.  552;  Bradley 
V.  Fisher,  13  Wall  335,  20  L.  ed.  646;  Cobb.  v.  U.  S.,  172  Fed.  641, 
644;  In  re  Uhner,  208  Fed.  461. 

Nevada.      In  re  Schnitzer,  33  Nev.  581,  112  Pac.  848. 

Philippines.     In  re  Terrell,  2  Philippine  266. 

Tennessee.      Smith   v.    State,   1   Yerg.   228. 


IN  RE  KRISEL,  FEB.  14,  1919.  853 

bar  knowingly  or  recklessly,  would  seem  to  constitute  "the 
moral  turpitude"  which  respondent  emphasizes  as  a  pre- 
requisite to  disbarment. 

Now  it  is  practically  undisputed  that  all  of  the  above 
steps  were  taken;  the  disputed  element  is  whether  they 
were  taken  knowingly  by  respondent.  He  seems  to  have 
participated  in  every  phase  of  the  affair.  He  advised  the 
hiring  of  a  launch;  he  was  present  during  part,  at  least, 
of  the  negotiations;  knew  of  the  offer  of  the  $200,  saw 
money  handed  over,  and  accepted  the  results  of  the  bargain. 
Nor  was  he  a  mere  participant  in  the  affair.  For  when 
asked 

"If  it  had  occurred  to  you  that  these  people  did  not  own  the 
launch  would  you  have  hired  it?" 

He  replied: 

"If  had  thought  that,  /  should  not  have  permitted  it." 
Elsewhere  (Ex.  B,  p.  13)  he  says: 

"/  certainly  would  not  have  permitted  the  $200  to  be  paid  to  the 
laodah  of  a  Standard  Oil  Launch  knowing  it  to  be  a  Standard  Oil 
launch." 

These  statements  clearly  seem  equivalent  to  admissions 
that  respondent  exercised  some  authority  as  regards  hiring 
the  launch  and  paying  the  money. 

Again,  when  the  others  were  about  to  give  up  the  pursuit, 
respondent 

"saw  Gensburger  hand  something  which  I  presumed  to  be  money. 
I  said  to  him  'Are  you  not  going?'  and  he  said  'No.  I  am  tired,' 
and  I  turned  to  Ellis  Ezra  and  said  'One  of  you  boys  ought  to  go.' 
Then  they  called  Judah  Ezra  who  refused  to  go.  Time  was  wasted 
and  I  said  'You  do  not  seem  to  want  to  go;  I  will  go.'  "      (Ex.  B,  10). 

In  this  Court  he  testified: 

"Q.  Why  did  you  think  it  was  necessary  to  accompany  the  police 
officer  on  that  sort  of  an  expedition;  was  there  any  point  on  which 
he  needed  your  advice? 

A.  No,  I  didn't  go  down  there  to  give  him  any  advice.  I  told 
Mr.  Ezra  that  I  thought  one  of  them  ought  to  go  as  they  were 
interested  in  the  action;  that  first  it  wasn't  fair  to  ask  two  strangers 
to  go  down  so  late  at  night,  and  I  also  told  him,  confidentially,  that 
I  did  not  think  they  would  go  down  to  the  China  if  he  let  them  go 
alone. 


g54  I  EXTRATERRITORIAL  CASES. 

Q.  Only  one  person  could  serve  the  process? 

A.  Yes. 

Q.  You  thought  it  was  necessary  in  order  to  see  that  he  served 

it? 

A.  To   see  that  they  went  down   to  the  China  and   attempted  to 

serve  it." 

This  testimony  seems  to  contain  a  sufficient  answer  to 
respondent's  claim  that  the  laodah  was  in  charge  of  the 
launch.  For  why  was  the  sum  of  $200  paid  the  laodah  and 
how  could  respondent  '"see  that  they  went  down  to  the 
China"  unless  he  had  control  of  the  launch?  Surely  the 
laodah  was  not  free  to  take  it  where  he  pleased  and  it 
seems  to  us  that  respondent  was  the  one  ultimately  in 
charge  of  the  expedition  and  hence,  for  the  time  being,  in 
at  least  constructive  possession  of  the  launch.  And  as 
such  possession  was  manifestly  unlawful  the  burden  would 
seem  to  rest  upon  him  to  show  that  he  was  ignorant  of 
its  unlawfulness.  In  other  words  one  who  is  found  in 
possession,  even  constructively  '  of  another's  property  which 
has  been  taken  without  the  owner's  consent,  must  explain 
such  possession  satisfactorily  or  it  is  presumed  intentionally 
wrongful.''  Moreover,  where  the  facts  are  substantially 
admitted  the  burden  rests  upon  respondent  to  show  his  good 
faith  '  and 

"unless  the  respondent  fairly  and  in  detail  explains  to  the  court  his 
entire  connection  with  the  transaction  wherein  he  is  charged  with 
improper  conduct,  it  will  be  presumed  that  he  is  unable  to  do  so." ' 

Respondent's  explanation  is  that  he  boarded  the  launch 
in  good  faith,  believing  that  it  had  been  properly  hired 


■'  U.  S.  v.  Simbahan,  19  Philippine,  25. 

"  Wigmore,  Evidence,  I,  sec.  152.  Compare  U.  S.  v.  Leonhardt  & 
Terry,   ante,   p.    790. 

'  "The  burden  was  upon  him  to  show  that  statements  made  in 
the  communication  which  were  scandalous  upon  their  face  were  not 
maliciously  or  willfully  published,  or  were  not  false,  and  he  cannot 
complain  that  upon  his  refusal  to  sustain  such  burden  of  proof,  or 
to  adduce  any  testimony  whatever,  the  court  took  the  information 
to  be  true."  Cobb  v.  United  States,  172  Fed.  641,  644,  96  C.  C. 
A.  477. 

'People  V.  Webster,  28  Col.  223,  64  Pac.  207. 


IN  RE  KRISEL,  FEB.  14,  1919.  855 

and  not  knowing  that  it  was  being  wrongfully  used.  The 
fundamental  task  in  the  case  as  we  see  it  is  to  determine 
whether  this  explanation  is  justified  by  the  evidence.  And 
in  so  determining  we  are  not,  of  course,  restricted  to  re- 
spondent's own  protestations  of  innocence.  On  the  contrary, 
as  those  of  the  most  interested  party,  they  must  be  taken 
with  caution.  Nor  should  the  opinions  as  to  his  conduct, 
or  even  the  testimony,  of  his  fellow  participants,  control. 
For  they,  too,  are  involved  in  the  transaction,  one  of  them 
having  been  convicted  by  reason  thereof,  and  are  naturally 
anxious  to  place  it  in  as  favorable  a  light  as  possible.  In- 
deed, Mr.  Sprague  testifies  that  respondent  informed  him, 
on  the  morning  after  the  wreck,  of  an  arrangement  by  which 
one  of  these  parties  "had  promised  not  to  mention  Mr. 
Krisel's  name"  and  that  respondent  had  also  complained 
that  this  same  party  "had  called  upon  me  (Mr.  Sprague) 
without  the  knowledge  or  consent  of  any  of  the  other  people 
concerned  in  the  matter  of  the  Meifoo  IV  wreck." 

There  are,  however,  certain  facts  and  circumstances 
which  stand  out  prominently  and  which  seem  to  us  control- 
ing: 

1.  As  we  have  seen,  the  launch  which  was  taken  and 
wrecked  was  named  Meifoo.  That,  it  is  conceded,  is  the 
Chinese  name  for  the  owner.     Respondent  testifies 

"I  have  known  the  Chinese  name  of  the  Standard  Oil  Company 
for  the  past  five  or  six  years;  it  is  Meifoo." 

He  also  states  that  he  speaks  the  Mandarin  dialect  of 
Chinese  and  understands  about  "half  of  the  local  (Shang- 
hai) dialect"  (Ex.  B,  p.  3) . 

Now,  Sergt.  Woodfield  saj''s  that  while  with  respondent 
at  the  French  Town  jetty,  after  the  party  had  failed  to 
obtain  a  launch  elsewhere,  a  Chinese  came  up  and  said 
"Meifoo  can  catch"  which  would  seem  to  have  been  suffi- 
cient notice  to  respondent  or  any  one  else  familiar  with 
"pidgin  English"  that  a  Standard  Oil  launch  was  being 
offered  for  hire.  The  testimony  on  this  point  is  in  part 
as  follows: 

"It  was  at  the  French  Town  jetty  I  heard  'Meifoo  can  catch.' 
I  think  I  heard  'all  right,  we  have  it'  or  something  like  that. 


856  I  EXTRATERRITORIAL  CASES. 

Q.  Did  you  hear  the  phrase  'Can  catch  Meifoo?' 

A.  At  the  French   Town  jetty,  the  first  jetty. 

Q.  Was   Mr.   Krisel   there? 

A.  Undoubtedly  he  was  there,  that  was  why,  that  is  why  we  left 
the   French  Town  jetty. 

Q.  Because   someone   said    'Can    catch   Meifoo?^ 

A.  Yes. 

Q.  Was  this  said  in  a  loud  tone  of  voice? 

A.  At  the  French   ToAvn  jetty. 

Q.  How  far  was  Mr.  Krisel  from  you? 

A.  I  don't  know,  but  we  were  grouped  together;  he  was  prob- 
ably on  my  right. 

Q.  About  how  far? 

A.  Groups  were  formed,  we  were  generally  together,  sometimes 
three  of  us  talking  together. 

Q.  Would  you  say  it  was  possible  for — that  it  would  have  been 
possible  for  Mr.  Krisel  to  have  heard  those  words  'Meifoo  can  catch'? 

A.  Oh,  yes." 

Respondent  denies  that  he  heard  the  offer  of  this  Chinese 
tho  he  admits  that  it  may  have  been  made;  but  as  between 
himself  and  Sergeant  Woodfield  we  feel  bound  to  accept 
the  latter  as  less  interested.  Nor,  in  our  judgment,  is 
his  testimony  overcome  by  the  fact  that  the  other  interested 
parties  present  on  that  occasion  do  not  admit  having  heard 
the  offer. 

2.  The  offer  of  the  Meifoo  was  important  enough,  then, 
to  cause  the  party  to  leave  the  "French  Town  jetty"  and 
proceed  to  the  Nanking  Road  jetty  where  they  negotiated 
for  a  motor  boat  (said  to  belong  to  the  Standard  Oil  Com- 
pany) and  a  discussion  followed  with  the  Chinese  which 
respondent  participated  in,  or  at  least  heard,  relative  to 
the  payment  of  two  hundred  dollars  for  the  use  of  a  launch. 
Later  the  party  proceeded  to  the  Canton  Road  jetty  where 
the  bargain  for  the  Meifoo  IV  was  consummated  and  re- 
spondent went  on  board. 

This  launch,  it  is  conceded,  had  the  letter  "S"  painted  on 
its  funnel  and  the  trade  name  "Socony"  on  its  pilot  house 
and  in  several  other  places.  Respondent  had  seen  this 
trade  name  "a  good  many  times;"  indeed  it  was  familiar 
to  him  from  his  work  in  the  American  Consulate  and  he 
admits  that  he  "would  recognize  that  as  the  trade  mark 


IN  RE  KRISEL,  FEB.  14,  1919.  857 

of  the  Standard  Oil  Co.  in  any  part  of  the  world"  (Ex.  B, 
p.  13).  Mr.  Sprague  testifies  that  shortly  after  the  affair 
in  question  he  went  to  the  same  jetty  on  two  different  nights 
at  about  eleven  o'clock  and  had  no  difficulty  in  picking  out 
the  marks  of  the  various  launches  moored  there.  From 
his  motor  car  in  the  street  he  states  "that  he  could  see  the 
"S"  on  the  funnel  of  the  Meifoo  III,  practically  a  sister 
ship  of  the  wrecked  one,  and  that  the  trade  mark  "Socony" 
on  the  pilot  house  was  visible  to  any  one  passing  to  the 
front  of  the  boat.  Respondent  characterizes  this  witness 
as  "an  interested  party,"  but  he  is  surely  not  a  party  to 
this  proceeding  and  he  is  a  reputable  business  man  of  high 
standing.  The  further  objection  that  his  experiments  were 
made  "on  an  ordinary  night"  is  contrary  to  the  testimony 
of  Mr.  Sprague  who  says  that  the  second  occasion  "was 
a  dark  night."  Moreover  he  shows  that  it  was  the  lights 
and  not  the  condition  of  the  night  that  enabled  him  to  see 
and  that  "the  Canton  Road  jetty  is  lighter  at  night  than 
the  other  jetties  along  the  Bund." 

Sergt.  Woodfield  made  a  similar  experiment  which  he 
describes  as  follows : 

"A  few  nights  ago  I  was  down  there.  I  do  not  know  how  the 
tide  was,  didn't  take  notice  how  it  was  running;  I  looked  at  this 
particular  jetty,  there  was  no  Standard  Oil  launch  there  at  that 
time;  there  was  a  Robert  Dollar  launch  lying  further  out  in  the  river; 
her  sign  was  perfectly  clear  to  me;  I  looked  for  the  sign  and  read 
it  perfectly  clear;  the  conditions  that  night  I  do  not  think  were  the 
same  as  on  the  previous  night. 

Q.  You  mean  they  were  better  or  worse,  on  the  last  night  you 
refer  to  for  purposes  of  observation  than  on  the  night  when  you 
made  the  trip  down  the  river? 

A.  They  may  have  been  better,  I  do  not  think  it  was  such  a 
dark  night.  This  last  occasion  it  was  raining  but  I  noticed  a  very 
strong  glare  from  the  Bund  lights;  it  was  not  raining  on  the  night 
down   the   river." 

But  rain  would  seem  to  make  the  conditions  less  favor- 
able. Sergt.  Woodfield  also  saw  the  trade  name  "Socony" 
on  the  pilot  house  of  the  Mei  Foo  IV  as  he  stepped  aboard 
altho  he  did  not  look  for  it.  In  his  brief  (p.  8)  respondent 
refers  to  this  as  follows : 


858 


I  EXTRATERRITORIAL  CASES. 


"Woodfield  testified  that  he  knew  it  was  a  Standard  Oil  boat  as 
soon  as  he  got  on  it,  because  one  of  the  crew  passed  in  front  of 
the  sign  on  the  deckhouse  with  a  lantern  which  lit  the  sign  up." 

But  what  the  witness  said  was : 

"It  seems  to  me  I  have  the  impression  in  the  back  of  my  mind 
and  it  seems  to  me  that  lights  were  being  moved  about  the  boat 
and  it  seems  to  me  a  light  passed  it  as  I  passed  on  the  boat  and 
I  noticed  it." 

In  other  words,  he  has  nothing  more  than  an  "impression" 
regarding  hghts  and  as  Mr.  Hope,  who  accompanied  him  on 
board  saw  none,  it  is  evident  that  the  "impression"  is  hardly 
to  be  relied  upon.  Mr.  Hope  did,  however,  see  the  "S" 
on  the  funnel  of  the  Met  Foo  IV. 

Respondent  does  not  admit  having  seen  any  of  these 
marks.  He  states  (Ex.  B,  p.  10)  that  he  "did  not  look  for 
it."  But  he  was  the  only  one  of  the  three  foreigners  who 
boarded  the  launch  at  the  time  who  does  not  admit  having 
seen  one  or  more  of  them. 

3.  The  information,  as  we  have  seen,  charges  that  re- 
spondent and  his  client  dealt  with  the  laodah  in  charge  of 
the  launch 

"well  knov/ing  that  Zung  Lao  Hung,  the  laodah  of  the  said  Mei  Foo 
IV,  did  not  have  authority  to  take  the  said  boat  to  Woosung." 

That  averment  is  not  denied  in  respondent's  answer. 
The  absence  of  such  denial  was  called  to  his  attention  during 
the  oral  argument  but  tho  he  asked  and  obtained  leave  to 
amend  by  adding  a  denial  as  to  another  charge  this  partic- 
ular one  was  left  undenied.  The  rule,  as  conceded  in  re- 
spondent's brief,  is  that  all  averments  not  denied  are  deemed 
admitted  in  civil  cases  and  in  disbarment  proceedings  the 
rules  of  civil  evidence  prevail  according  to  the  weight  of 
authority.^ 

But  this  admission  does  not  consist  merely  in  a  failure 
to  deny.     For  respondent  testified: 

"Q.  Did  you  think  these  Chinese  owned  the  launch? 
A.  No,  I  did  not  think  that. 

'  Corpus  Juris,  VI,  607,  notes  88,  89. 


IN  RE  KRISEL,  FEB.  14,  1919.  859 

Q.  Did  you  think  when  the  money  was  passed  it  was  going  to 
the  owner  of  the  launch? 

A.   Yes.     That  was  my  assumption  at  the  time. 

Q.  You  saw  the  Chinese? 

A.  What  would  be  seeing  a  Chinese  at  50  ft.  on  a  dark  night? 

Q.  Did  they  look  like  men  who  happened  to  be  owning  a  fine  steam 
launch? 

A.  It  would  be  impossible  to  say,  but  I  did  not  think  they  owned 
the  launch.     *     *     * 

Q.  You  did  not  think  Chinese  owned  the  launch? 

A.  I  did  not  think  at  the  time.  I  think  I  should  not  (have  had) 
any  idea  that  they  owned  it. 

Q.  Having  that  idea,  did  it  occur  to  you  to  inquire  who  owned 
the  launch? 

A.  No,  it  did  not.     *     *     * 

Q.  As  a  lawyer;  there  were  two  men  who  you  had  no  reason  to 
believe  owned  a  launch? 

A.  These  two  people  were  down  near  the  Nanking  Road  jetty. 

Q.  They  went  to  the  Canton  Road  jetty? 

A.  I  suppose  so.  I  don't  know.  We  went  in  motor  cars  to  the 
neighborhood  of  the  Canton  Road  jetty  and  when  I  got  there  Wood- 
field  and  Hope  were  on  board. 

Q.  Were  there  any  Chinese  on  the  Canton  Road  jetty  who  you 
had  reason  to  believe  were  the  owners  of  the  launch? 

A.  I  had  no  reason  to  look  around.  There  were  20  or  30  Chinese 
there. 

Q.  All  touting? 

A.  I  assumed  they  were  all  laodahs.     *     *     * 

Q.  These  Chinese  came  up  and  asked  for  money.  You  did  not  take 
be  to  owners  of  the  boat? 

A.  No.  I  never  thought  of  it  at  the  time,  but  I  do  not  think 
that  I  would  have  thought  they  were  the  owners.  I  did  not  suppose 
that  the  owners  would  be  living  on  board.  I  thought  the  man  in 
charge  would  be  the  laodah   (Ex.  B,  pp.  7,  9,  11). 

The  conclusion  seems  irresistible  from  this  testimony  that 
respondent  knew  that  he  and  his  companions  were  not  deal- 
ing with  the  owners  of  the  launch  in  question,  and  that 
he  at  least  made  no  effort  whatever  to  pursue  the  inquiry 
which  the  facts  naturally  suggested.  That  he  knew  the 
wrongfulness  of  dealing  with  others  than  the  owners  is 
also  apparent  from  the  following  passages  in  his  testimony : 

"Q.  If  you  had  known  the  launch  belonged  to  anybody  else  would 
you  have  made  inquiries? 

A.  If  I  had  knoAvn  it  was  a  foreign  hong  I  should  have  known 
that  the  laodah  was  doing  this  on  his  own  part  and  I  should  not  have 
consented.     *     *     * 


860 


I  EXTRATERRITORIAL  CASES. 


Q.  If  you  had  any  reason  to  believe  the  Mei  Foo  IV  was  a 
Standard  Oil  launch  you  would  have  communicated  with  the  Standard 
Oil? 

A.  I  certainly  would.  I  certainly  would  not  have  permitted  the 
$200  to  be  paid  to  the  laodah  of  a  Standard  Oil  launch  knowing  it  to 
be  a  Standard  Oil  launch  because  I  know  the  Standard  Oil  Co.  has 
been  very  nice  that  way  in  assisting  people  by  letting  them  have  the 
launches  on  occasion." 

(See  also  his  testimony  quoted  above  (p.  7)    (Ex.  B,  pp.  12,  13). 

Shortly  after  the  launch  started,  two  Chinese  approached 
him  and  asked  for  money  but  the  respondent  did  not  refer 
them  to  their  employers  altho  he  admits  that  he  did  not 
take  them  to  be  the  owners  or  in  charge.  Nor  did  he  in- 
quire of  these  men  even  then  who  their  employers  were. 
No  such  inquiry  was  made  by  him  until  after  the  wreck, 
at  which  time  escape  from  a  very  embarrassing  situation 
seemed  imperative,  and  the  inference  would  appear  to  be 
that  had  the  launch  completed  its  voyage  and  returned  in 
safety  respondent  would  have  paid  no  attention  to  the 
ownership.  He  admits  (Ex.  B,  p.  12)  knowing  as  soon  as 
he  learned  of  the  ownership  that  the  Standard  Oil  Company 
could  not  have  known  of  this  use  of  its  launch  and  the 
facts  which  originally  placed  him  upon  inquiry  would,  there- 
fore, if  followed  up,  have  shown  him  at  once  that  he  was 
engaged  in  an  unlawful  transaction.  He  appears  to  have 
been  well  aware  of  the  fact  to  which  Mr.  Sprague  testifies, 
that  the  Standard  Oil  Company  does  not  maintain  launches 
for  hire,  that  no  such  bargain  as  this  was  ever  authorized 
by  it  and  it  was  a  necessary  consequence  that  the  act  of  the 
laodah  in  so  using  it  amounted  substantially  to  a  conversion 
of  the  property. 

4.  The  amount  paid  the  laodah  was  another  circumstance 
which  should  have  warned  respondent.     He  testifies 

"Q.  Did  you  hear  the  conversation  about  the  hire  to  be  paid? 

A.  Yes.  I  heard  about  $200  was  offered,  and  as  far  as  I  could 
judge  it  was  agreeable  to  the  laodah  in  charge.  He  raised  no  objection 
as  to  the  hire.     *     *     * 

Q.  Did  you  see  any  money  pass? 

A.  Yes.  As  I  was  coming  up  I  saw  Mr.  Gensberger  hand  some- 
thing which  I  at  the  time  presumed  to  be  money  to  one  of  the  two 
men,  Hope  or  Woodfield,  on  the  launch."     (Ex.  B,  pp.  5,  6.) 


IN  RE  KRISEL,  FEB.  14,  1919.  861 

The  objection  that  this  testimony  includes  references  to 
different  jetties  appears  to  us  unimportant.  The  fact  that 
this  amount  was  known  by  respondent  to  have  been  offered 
to  any  laodah  should  have  put  respondent  upon  inquiry  as 
to  subsequent  ones. 

Sergt.  Woodfield  testified  that  during  the  negotiations  he 
remarked : 

"  'Good  gracious,  are  you  paying  $200  for  a  launch  to  go  down  to 
Woosung.'     I  said  they  would  be  lucky  if  they  got  $150.     *     *     * 

Q.  In  point  of  fact  he  had  $250. 

A.  I  know  he  handed  $50  to  Mr.  Hope.  I  said  to  Mr.  Hope, 
'Good  gracious,  that  is  a  large  amount,  what  is  the  legal  fare?'  Mr. 
Hope  said  probably  $75.  Then  I  stepped  back;  I  was  not  paying 
the  money."    (Ex.  C,  p.  20.) 

In  other  words  that  witness  did  not  consider  it  a  matter 
in  which  he  should  further  interfere.  Respondent,  how- 
ever, was  taking  charge  of  the  expedition  and  availing 
himself  of  the  services  of  the  laodah  who  he  knew,  or  at 
least  had  reason  to  believe,  had  received  that  large  amount. 
Did  such  knowledge  never  lead  him  to  inquire  why  this 
unusual  payment  was  necessary?  And  can  he  be  said  to 
have  met  the  burden  of  showing  that  his  presence  on 
the  launch,  and  his  constructive  possession  thereof  for  the 
time  being,  were  innocent  and  without  knowledge  of  its 
unlawful  character,  so  long  as  all  these  marks  and  cir- 
cumstances were  ignored? 

5.  Finally  we  may  refer  again  to  the  testimony  of  Mr. 
Sprague  that  respondent  informed  him  that  the  latter's 
name  was  not  to  be  mentioned.  But  why  not  if  he  were 
innocent  and  the  transaction  legitimate?  The  "deceit" 
mentioned  in  the  statute  as  a  ground  for  disbarment  need 
not,  of  course,  be  overt.  For  suppressio  veri  constitutes 
deceit  as  well  as  suggestio  falsi^° 

III. 

The  fact  that  his  client  was  convicted  in  the  British 
Court  for  this  very  transaction  in  which  respondent  par- 

"  Strong  V.  Gutierrez,  213  U.  S.,  419,  53  L.  ed.,  853;  Parker  v. 
Ausland,13  S.  D.,  169,  82  N.  W.,  402. 


862  I  EXTRATERRITORIAL  CASES. 

ticipated  does  not,  of  course,  constitute  res  adjudicata  as 
to  the  latter.  But  it  would  certainly  be  anomalous  if  the 
client  could  be  convicted  and  punished  for  doing  exactly 
what  the  attorney  advised  and  participated  in  and  the 
latter  still  remain  immune.  It  is  true  he  protests  that 
he  did  not  advise  the  commission  of  a  crime  and  that 
similarly  the  client  protests  that  he  did  not  commit  a  crime ; 
but  the  fact  remains  that  the  highest  local  tribunal  of  a 
sister  nation  has  decided,  by  dismissing  the  appeal,  that 
a  crime  was  committed  and  that  the  acts  which  respondent 
admits  having  advised  and  participated  in  constituted  that 
crime. 

We  do  not  well  see  how  that  fact  can  be  ignored  in  a 
proceeding  like  this.  We  have  here  an  international  com- 
munity where  members  of  the  bar  of  one  court  are  per- 
mitted by  courtesy  to  practice  in  other  courts.  In  order 
that  this  highly  gratifying  and  mutually  beneficial  arrange- 
ment may  not  be  impaired  it  is  important  that  each  court 
see  to  it  that  the  members  of  its  bar  so  conduct  themselves 
that  their  appearance  in  the  foreign  court  will  not  be  objec- 
tionable. We  would  hardly  welcome  here  the  appearance 
of  a  foreign  lawyer  who  had  advised  an  American  client 
to  commit  acts  which  constitute  a  crime  under  American 
law  tho  they  might  not  be  such  under  the  law  of  the  former's 
0W71  jurisdiction.  On  the  other  hand  we  could  hardly  expect 
our  colleagues  of  H.  B.  M.  Supreme  Court  to  look  with 
complacency  upon  the  appearance  there  of  a  member  of 
the  bar  of  this  Court  whose  client  had  been  convicted  for 
acts  which  the  attorney  had  advised  and  participated  in. 
The  situation  is  quite  different  from  one  where  the  conduct 
of  the  attorney  in  question  affects,  and  is  reviewed  solely 
by,  the  courts  of  a  single  sovereignty. 

^Vhether  the  acts  above  set  forth  constitute  under  our 
law  the  precise  offense  for  which  the  client  was  convicted 
in  the  British  Court  we  need  not  now  determine.  But 
it  would  be  a  reproach  to  American  justice  if  the  property 
of  another  could  be  taken  without  his  consent  in  the  manner 
shown  by  this  evidence,  and  destroyed,  or  at  least  badly 
injured,    with    impunity.     Under    some    circumstances    it 


IN  RE  KRISEL,  FEB.  14,  1919.  863 

might  constitute  the  offense  known  as  receiving  misap- 
propriated property  which  in  this  jurisdiction  is  defined 
as  follows: 

"Every  person  who  shall  buy  or  in  any  ivay  receive  anything  of 
value,  know^ing  the  same  to  have  been  embezzled,  taken,  or  secreted 
contrary  to  the  provisions  of  any  of  the  three  next  preceding  sections, 
shall  be  punished  in  the  same  manner  and  to  the  same  extent  as 
prescribed  in  said  sections,  respectively." " 

The  "next  preceding  sections"  here  referred  to  include  the 
case  of  the  "servant  of  any  *  *  *  incorporated  com- 
pany" who 

"shall  wrongfully  convert  to  his  own  use,  or  fraudulently  take, 
make  way  with,  or  secrete,  with  intent  to  convert  to  his  own  use, 
anything  of  value  which  shall  come  into  his  possession  or  under  his 
care  by  virtue  of  his  employment-"  " 

We  have  said  that  the  acts  here  shown  might  constitute 
this  crime  under  certain  circumstances.  The  particular 
circumstance  which  we  had  in  mind  was  that  of  knowledge. 
The  property  converted  by  the  servant  must  have  been 
received  by  the  offender  "knowing  the  same  to  have  been 
*     *     *     taken,  or  secreted,"  etc. 

"The  guilty  knowledge,  however,  need  not  be  direct  and  actual;  it 
may  be  circumstantial  and  inductive.  It  is  sufficient  if  the  receiver 
believed  or  reasonably  suspected,  from  the  circumstances  of  the 
transaction,  that  the  goods  were  stolen."  " 

"If  you  find  that  all  the  facts  and  circumstances  surrounding  the 
receiving  of  the  goods  by  defendant  were  such  as  would  reasonably 
satisfy  a  man  of  defendant's  age  and  intelligence  that  the  goods  were 
stolen,  or  if  he  failed  to  folloiv  up  such  inquiry  so  suggested,  for  fear 
he  would  learn  the  truth  and  know  that  the  goods  were  stolen, -the 
defendant  should  be  rigidly  held  responsible  as  if  he  had  actual  knowl- 
edge." " 

"In  determining  whether  the  fact  (of  guilty  knowledge)  existed, 
the  jury  will  be  justified  in  presuming  that  the  prisoner  acted  ration- 


"  Act  of  Congress  of  March  3,  1901,  sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  836.  Cf.  Act  of  Congress  of  March  3,  1899,  sess. 
Ill,  30  U.  S.  Stats,  at  Large,  Ch.  429,  Tit.  I,  sec.  52. 

''Act  of  Congress  of  March  3,  1901,  sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  834. 

"  Cyc,  XXXIV,  516. 

"  Charge  to  the  jury  in  State  v.  Feuerhaken,  96  Iowa,  299,  65  N.  W. 
299. 


864  1  EXTRATERRITORIAL  CASES. 

ally,  and  that  whatever  would  convey  knowledge  or  induce  belief  in 
the  mind  of  a  reasonable  person,  would,  in  the  absence  of  counter- 
vailing evidence,  be  sufficient  to  apprise  the  prisoner  of  the  like  fact,  or 
induce  in  his  mind  the  like  impression  and  belief."  " 

"If  the  defendant  did  not  know  the  facts,  but  believed,  from  the 
circumstances,  that  the  property  had  been  either  embezzled  or  stolen 
and  it  had  been  actually  stolen,  it  was  competent  for  the  jury  to  find 
the  defendant  guilty  of  the  offence  charged"  (receiving  stolen  goods)." 

In  this  case,  as  we  have  seen,  respondent  seeks  to  excuse 
himself  by  pleading  inadvertence.  He  **did  not  look  closely 
at  the  boat"  on  boarding;  he  "did  not  look  for"  the  sign 
on  the  Meifoo  IV;  he  "didn't  think"  about  ownership.  A 
typical  passage  is  the  following  from  his  examination  in 
the  British  Court: 

"Q.  Now  when  you  saw  the  money  pass  that  night,  to  whom  did 
you  understand  it  was  to  be  paid? 

A.  I  gave  no  thought.  I  saw  something  handed  over  as  I  came 
up. 

Q.  I  will  ask  you  a  plain  question  as  a  lawyer.  To  whom  do  you 
think  the  money  was  to  be  paid?  It  was  on  your  advice  that  it  was 
done.     Who  was  the  money  to  be  given  to? 

A.  It  was  given  to  Hope.  I  presumed  it  was  money  and  I  gave 
the  matter  no  further  thought. 

Q.  I  would  like  you  to  give  me  an  answer.  To  whom  did  you 
think  the  money  was  to  be  paid? 

A.  I  have  answered  that  I  did  not  give  the  matter  further  thought." 
(Ex.  B,  p.  6.) 

So  when  Sergt.  Woodfield  as  he  states  made  a  remark 
regarding  the  launch  which  would  have  opened  the  way  for 
a  discussion  of  its  ownership  there  was  no  response. 

In  view  of  the  authorities  just  cited,  such  testimony  would 
hardly  afford  a  defense  to  a  prosecution  under  the  statute 
above  quoted  and  it  would  seem  less  effective  in  a  proceed- 
ing like  this.  It  was  respondent's  duty  to  think,  to  look, 
to  take  notice.  It  was  his  business  to  know  what  he  was 
doing. 

"  Huggins  V.  People,  135  111.,  243,  25  N.  E.,  1002,  25  Am.  St.  Repi, 
357. 

"Commonwealth  v.  Leonard,  140  Mass.,  473,  4  N.  E.,  96,  54  Am. 
Rep.,  485. 


IN  RE  KRISEL,  FEB.  14,  1919.  865 

IV. 

The  limits  already  reached  in  this  opinion  leave  little 
space  to  consider  in  detail  the  charge  of  false  swearing. 
Suffice  it  to  say  on  that  subject  that  the  charge  to  the 
jury  in  the  British  Court  appears  clearly  to  have  submitted 
the  question  of  respondent's  veracity.  For  the  jury  was 
told  "If  you  were  to  follow  Mr.  Krisel's  evidence  it  seems 
to  me  you  would  be  pretty  well  bound  to  acquit  the  accused." 
As  the  jury  failed  to  "acquit"  the  accused  it  would  seem 
clear  that  they  did  not  believe  the  respondent.  So  here 
we  cannot,  in  view  of  respondent's  well  known  keenness 
and  opportunities  for  observation,  believe  as  he  would  have 
us  that  he  had  no  idea  that  he  was  boarding  a  Standard 
Oil  launch  nor  even  one  belonging  to  some  foreigner.  We 
cannot  escape  the  conclusion,  from  a  survey  of  the  whole 
evidence,  that  he  was  so  anxious  to  effect  the  service  of 
the  order  of  arrest  that  he  was  ready  to  employ  almost 
any  means  "to  do  so.  We  do  not  suppose  that  he  inten- 
tionally sought  out  a  Standard  Oil  launch  but  we  think 
the  evidence  discloses  that  after  a  failure  to  obtain  one 
elsewhere  he  was  ready  to  and  did  take  any  that  came 
along,  without  considering  its  ownership  and  hoping  to 
accomplish  his  purpose  and  return  without  detection  in 
case  of  failure.  This  involves  such  a  disregard  of  the 
right  of  property,  such  a  lack  of  adherence  to  the  ethical 
standards  which  should  govern  a  member  of  the  bar,  that 
it  cannot  be  characterized  as  anything  short  of  misconduct. 

We,  therefore,  find  from  the  evidence: 

1.  That  respondent  was  guilty  of  misconduct  in  knowingly 
using  another's  launch,  obtained  without  the  owner's  knowl- 
edge or  consent  by  the  payment  of  an  unusual  sum  to 
one  who  was  understood  not  to  have  authority  to  hire 
it  and  in  recklessly  permitting  servants  of  the  owner  to 
use  said  launch  in  such  a  way  as  to  cause  it  serious  injury. 

2.  That  the  respondent  was  guilty  of  willful  deceit  in 
failing  to  state  fully  and  fairly  in  Court  the  extent  of  his 
knowledge  of  the  ownership  of  said  launch. 

14008    O.    W. 55 


855  I  EXTRATERRITORIAL  CASES. 

3.  That   such  misconduct  and   deceit   would  have  been 

sufficient  to  have  prevented  respondent's   admission  ^^   to 

the  bar — at  least  without  some  period  of  probation — and 

are  sufficient  to  justify  disbarment  under  the  statute.^* 
******* 

It  is  a  painful  duty  which  these  findings  impose.  For 
the  respondent's  professional  career  is  one  in  which  we 
have  had  a  special  interest.  His  was  the  first  application 
for  admission  which  was  presented  to  us  after  taking  charge 
of  the  Court  nearly  five  years  ago.  It  had  been  pending 
for  some  time  but  the  report  of  the  examining  committee 
had  not  been  made  for  reasons  which  we  were  unaware  of 
at  the  time.  The  report  was  finally  secured,  however,  and 
the  respondent  admitted.  Shortly  after  that  we  had  occa- 
sion to  suggest  to  the  Minister  his  transfer  to  Shanghai 
and  his  assignment  to  the  International  Mixed  Court  on 
account  of  his  legal  knowledge.  Naturally,  it  is  a  keen  dis- 
appointment to  find  him  involved  in  an  affair  of  this  kind 
which  has  acquired  such  wide  notoriety  and  indirectly 
affected  the  good  name  of  the  bar  of  this  Court. 

But  while  we  are  of  the  opinion  that  the  facts  of  this! 
record  would  justify  permanent  disbarment  we  are  loth  to 
impose   that   extreme   without  giving   respondent   further 
opportunity  to  retrieve  himself  within  the  legal  profession. 
He  is  a  young  man  of  much  more  than  average  ability 
and  acuteness    (which  unfortunately  only  aggravates   his] 
offense)  and  with  proper  moral  standards  there  is  no  reason] 
why  he  should  not  attain  success  at  the  bar.     We  prefer] 
to  allow  him  a  chance  to  show  that  this  experience  has] 
taught  him  a  lesson  and  that  hereafter  he  will  adopt  some] 
other  rule  of  conduct  than  that  the  end  justifies  the  means.! 
We  have  accordingly  decided  to  suspend  him  from  practice 
in  American  Courts  in  China,  and  from  all  the  privileges 
resulting  from  such  practice,  for  a  period  of  one  year,  at 
the  end  of  which  an  application  for  reinstatement,  accom- 
panied by  a  showing  of  intermediate  good  conduct  and  a] 

"Corpus  Juris,  VI,  584. 

"  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  II,  sec.  743. 


EVERETT  V.  S WAYNE  ET  AL.,  MAR.  5,  1919.  867 

guaranty  of  changed  standards  for  the  future,  will  be 
considered. 

The  foregoing  order  was  duly  announced  and  read  in 
full  to  the  respondent  in  open  court  on  January  25,  1919, 
but  at  his  earnest  request  that  it  be  withheld  from  entry 
until  he  might  finish  his  pending  cases,  it  was  not  then 
signed  or  filed. 

At  the  same  time  he  moved  orally  for  a  new  trial  and 
was  heard  later  at  length  in  support  thereof.  In  some  par- 
ticulars— notably  as  to  costs — we  have  modified  the  opinion 
to  conform  to  said  motion.  But  on  the  whole  we  find  no 
sufficient  reason  to  change  the  conclusions  already  an- 
nounced and,  regardless  of  whether  the  motion  was  in 
proper  form,  a  new  trial  is  denied.^" 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

LEONARif  Everett,  Plaintiff,  v.  Swayne  &  Hoyt, 
Defendant. 

[Cause   No.   507;   filed   March   5,   1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  STARE  DECISIS.     The  doctrine  of  U.  S.  v.  Engelbracht,  ante,  p.  169, 

followed  and  applied. 

2.  LAW.     The  Court  Regulations  for  China  are  "so  far  as  practicable," 

and  except  as  modified  by  the  Judge  of  this  Court,  given  pre- 
ference herein  over  other  procedural  provisions. 

3.  JUDGMENTS:  INTEREST  at  the  rate  of  12%  on  judgments  is  allowed 

by  said  Regulations. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  the  mo- 
tion. 

Messrs.  Jernigan,  Fessenden  &  Rose,  by  Mr.  Rose,  contra. 

"A  notice  of  appeal  was  filed  but  the  attempt  was  abandoned. 
The  rule  in  the  Federal  courts  is  that  neither  appeal  nor  writ  of 
error  lies  from  an  order  of  disbarment  by  a  district  court.  Ex  parte 
Robinson,  19  Wall.,  513,  22  L.  ed.,  205;  Ex  parte  Bradley,  7  Wall., 
364,  19  L.  ed.,  219;  Bradley  v.  Fischer,  13  Wall.,  335,  20  L.  ed.,  646; 
In  re  Ulmer,  208  Fed.,  461,  468,  &  cit^  Nor  will  mandamus  lie  to 
compel  respondent's  reinstatement.  Ex  parte  Secombe,  19  How.,  9, 
15  L.  ed.,  565.     Ed. 


ggg  I  EXTRATERRITORIAL  CASES. 

LOBINGIER,  J.  : 

Plaintiff  moves  for  execution  of  the  judgment  herein 
rendered  on  December  28,  1916,  and  affirmed  by  the  Court 
of  Appeals  on  January  6,  1919,  and  claims  interest  thereon 
at  12%  per  annum  from  the  date  of  its  rendition.  This 
claim  is  based  on  the  following  provision: 

"On  the  second  day  after  judgment  (exclusive  of  Sunday) ,  execution 
may  issue,  enforcing  the  same,  with  interest  at  12  per  cent  a  year 
against  the  property  and  person  of  the  debtor,  returnable  in  thirty 
days,  and  renewable." ' 

Defendant  objects  to  this  item  of  interest 

"on  the  ground  that  the  Acts  of  Congi-ess  applicable  in  this  jurisdic- 
tion provide  that  the  rate  of  interest  on  judgments  shall  be  six  per 
cent  per  annum." " 

The  question  presented,  therefore,  is  whether  we  shall 
follow  the  Court  Regulation  or  the  special  Act  of  Congress 
in  awarding  interest  on  judgments.  But  that  question  is 
not  an  open  one  in  this  jurisdiction.  A  decision  ^  of  this 
Court  rendered  nearly  a  decade  ago  upholds  a  provision  of 
these  Court  Regulations  as  against  a  general  (not  merely 
special,  like  that  invoked  by  defendant)  Act  of  Congress. 

The  point  there  under  consideration  related  to  prescrip- 
tion or  the  limitation  of  actions  which  is  hardly  more  of 
a  procedural  subject  than  interest  on  judgments.  Moreover 
it  is  unquestionably  ''practicable"  to  apply  the  Regulationj 
regarding  such  interest. 

The  Rules  of  the  Court  of  Appeals  provide : 

"In  cases  where  a  writ  of  error  is  prosecuted  in  this  court,  and  th« 
judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be  calcu-j 
lated  and  levied  from  the  date  of  judgment  below  until  the  same  is' 
paid,  at  the  same  rate  that  similar  judgments  bear  interest  in  the 
courts  of  the  State  or  Territory  where  such  judgment  was  rendered."  * 

Under  the  authorities  above  reviewed  it  is  obvious  that 
the  "rate  that  similar  judgments  bear  in  the  court  *  *  * 
where  this  judgment  was  rendered"  is  12%  and  the  motion 
for  execution  on  that  basis  must  accordingly  be  sustained. 


'Court  Regulations  for  China   (1864),  21. 

'  Citing  Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats, 
at  Large,  Ch.  854,  sees.  1178,  1186. 
'  U.  S.  V.  Engelbracht,  ante,  p.  169. 
^Rule  30  (1). 


IN  RE  FITCH'S  ESTATE,  MAR.  8,  1919.  869 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Alberta  C.  K.  Fitch's  Estate, 

[Cause  No.  736.] 

Yao  Sui  Dong,  Plaintiff,  v.  American  Food  Mfg.  Co.,  Ltd., 

Defendant. 

[Cause  No.  740.] 
(Filed  March  8,  1919.) 

SYLLABUS. 

(By  the  Court.) 

1.  COURTS:  Jurisdiction  of  American  Consular  Courts  in  China  has 

always  been  concurrent  only — first  with  that  of  the  Commis- 
sioner, then  with  that  of  the  Minister  and  now  with  that  of 
this  Court. 

2.  Id.:  Id.:  Shanghai  Consular  Court.    While  the  Act  of  Congress 

of  March  2,M909,  was  in  force  the  only  functionary  authorized 
to  preside  over  the  Consular  Court  for  the  district  of  Shanghai 
was  one  holding  the  office  of  "vice-consul-general." 

3.  Id.  :   Id.  :   Transfer.     By  the  abolition  of  said  office,  in  the  Act  of 

Congress  of  February  5,  1915,  the  jurisdiction  of  said  Court  lapsed 
and  merged  with  that  of  this  Court. 

4.  Id.:   Id.:  Whether   or   not   the   subsequent   act   declaring   "judicial 

authority  *  *  *  vested  in"  another  officer  was  effective  to 
undo  such  merger  and  recall  such  lapsed  jurisdiction,  it  is  con- 
current only. 

Robert  T.  Bryan,  Jr.,  and  Rodger  &  Haskell,  by  Mr. 
Haskell,  for  tlie  demurrants. 

Dr.  H.  C.  Mei,  for  the  petitioner  in  Cause  No.  736. 

Jernigan,  Fessenden  &  Rose,  by  Mr.  Rose,  for  the  peti- 
tioner in  Cause  No.  740. 

LOBINGIER,  J.: 

The  petitions  here  assailed  by  demurrer  invoke  the 
jurisdiction  of  this  Court  in  causes  each  involving  in  China 
less  than  $500,  U.  S.  currency.  As  both  demurrers  present 
substantially  the  same  question  they  have  been  considered 
together  tho  argued  separately.  They  go  to  the  root  of  the 
jurisdiction  of  American  Courts  in  China  and  call  for  a 
review  of  legislation  relating  thereto. 

It  was  assumed,  rather  than  urged,  by  demurrants  that 
the  Consular  Court  alone  has  jurisdiction  of  these  causes. 


g70  I  EXTRATERRITORIAL  CASES. 

We  certainly  cannot  agree  with  the  contrary  contention 
that  the  Consular  Courts  were  never  really  vested  with 
probate  jurisdiction.  It  must  be  remembered  that  our 
original  treaty  of  1844  with  China  reserved  to  the  "author- 
ities" of  our  own  government 

"All  questions  in  regard  to  rights,  whether  of  property  or  person, 
arising  between  citizens  of  the   United   States  in   China."  ' 

Then  the  Act  of  Congress  of  August  11,  1848,  provided 

"That  in  regard  to  civil  rights,  whether  of  property  or  person,  the 
said  functionaries  are  hereby  vested  with  all  the  judicial  authority 
necessary  to  execute  the  provisions  of  said  treaty".^ 

This  was  repeated  in  the  Act  of  June  22,  1860  '■'  and  its 
language  clearly  seems  ample  to  include  probate,  along 
with  other,  jurisdiction.*  The  fact  that  a  much  earlier 
statute  ^  gave  the  consuls  certain  administrative  powers  over 
estates  of  deceased  Americans  in  no  way  affected  this  later 
grant  as  to  extraterritorial  countries,  the  consuls  in  the 
latter  may  have  been  content  to  exercise  merely  those 
powers. 

But  it  does  not  follow  that  the  consuls  ever  had  exclusive 
jurisdiction  in  probate  or  other  causes.  For  who  were  the 
"authorities"  and  "functionaries"  referred  to  in  the  above 
excerpts?  The  first  section  of  the  Act  of  1848  answers  this 
by  investing  "the  commissioner  and  the  consuls  *  *  * 
with  the  judicial  authority  herein  described." 

We  have  not  overlooked  the  opinion  of  Attorney  General 
Cushing "  regarding  that  act  and  his  opinions,  like  those 
of  other  Attorneys  General,  are  entitled  to  consideration. 
They  are  not,  however,  binding  like  the  decisions  of  a 
court  but  are  to  administrative  officers  advisory  only  "  and 

'  Art.  XXI,  Malloy,  Treaties,  I,  202,  ante,  p.  2. 

'9  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  150,  sec.  3,  p.  276. 

'  12  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  179,  sec.  3,  p.  73. 

*In  re  Roberts'  Will,  U.  S.  Court  for  China,  May  15,  1907;  In  re 
Consul  General's  Report,  ante,  p.  291;  Mather  v.  Cunningham,  ante, 
p.  136. 

°  Act  of  April  14,  1792,  1  U.  S.  Stats,  at  Large.  Ch.  24,  sec.  2,  p. 
255.     See  In  re  Consul  General's  Report,  ante,  p.  291. 

'  Opinions  of  Attorneys  General,  VII,  507. 

'  Id.,  IX,  32. 


IN  RE  FITCH'S  ESTATE,  MAR.  8,  1919.  871 

to  courts  more  in  the  nature  of  arguments  which  are  ex- 
tremely helpful  when  sound  and  fortified  by  authority. 
In  said  opinion  Mr.  Gushing  concedes  that 

"it  is  nowhere  said  by  the  statute,  in  so  many  words,  that  the  judicial 
authority  of  the  commissioner  in  the  trial  of  the  above  described 
cases,  civil  or  criminal,  is  appellate  only." 

Necessarily  then,  such  "words"  must  be  read  into  the 
statute  and  the  reasons  for  doing  so  must  be  clear.  Mr. 
Gushing  states  as  his  chief  reason  that 

"No  original  jurisdiction  in  these  two  classes  of  cases  is  given  to  him 
in  express  terms  by  the  statute.  It  is  all  conferred  in  express  terms 
on  the  consuls." 

But  in  this  the  distinguished  Attorney  General  hardly 
seems  to  have  given  full  force  to  the  provision 

"That  the  comm^sioner  of  the  United  States  shall  *  *  *  be 
fully  authorized  to  hear  and  decide  all  cases,  criminal  and  civil,  which 
may  come  before  him  under  the  provisions  of  this  act."  * 

Here,  it  will  be  seen,  his  jurisdiction  is  not  limited  to 
those  cases  "which  may  come  before  him"  on  appeal  but 
extends  to  "all  ^  cases."  The  subsequently  conferred  au- 
thority "to  decide  finally  any  case  upon  the  evidence  which 
comes  up  with  it"  is  in  a  separate  clause  and  we  see  no 
reason  to  treat  it  as  limiting  "all"  that  precedes.  Indeed 
the  "cases  which  may  come  before  him"  are  broadly  stated 
in  the  second  and  third  sections  of  the  act,  the  former  of 
which  provides 

"That  in  regard  to  crimes  and  misdemeanors,  the  said  public 
functionaries  are  hereby  fully  empowered  to  arraign,  and  try,  in 
the  manner  herein  provided,  all  citizens  of  the  United  States  charged 
with  offences  against  law  *  *  *  and  the  said  functionaries  and 
each  of  them  are  hereby  authorized  to  issue  all  such  processes  as 
are  suitable  and  necessary  to  carry  this  authority  into  execution." 

The  "issue  of  processes"  belongs  ordinarily  to  a  nisi  p^'ius 
court  and  conferring  that  function  upon  the  Gommissioner 
would  seem  clearly  to  imply  that  his  powers  were  not  ex- 
clusively appellate.     So  the  grant  to  "said  functionaries" 


'  9  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  150,  sec.  13,  p.  278. 

*  "Some  one  had  said  that  there  is  no  more  comprehensive  word 
in  the  English  language  than  the  word  'all.' "  Barrameda  v.  Moir, 
25  Philippine,  44,  46,  construing  a  similar  jurisdictional  clause. 


872  I  EXTRATERRITORIAL  CASES. 

in  the  third  section  of  "all  the  judicial  authority  necessary 
*     *     *     in  regard  to  civil  rights"  appears  equally  broad. 

Moreover  the  provisions  ^^  which  Mr.  Gushing  apparently 
construed  as  conferring  "original  jurisdiction  *  *  * 
in  express  terms  on  the  consuls"  do  not  use  that  phrase 
at  all  and  are  devoted  rather  to  prescribing  procedure  than 
to  conferring  jurisdiction.  The  jurisdiction  is  conferred 
equally,  as  we  have  seen,  by  the  first  three  sections  of  the 
act  and  we  find  no  subsequent  section  where  their  broad 
grants  are  withdrawn  or  even  qualified. 

Mr.  Cushing's  other  reason  is  that 

"It  seems  fitting,  (sic)  and  in  the  analogy  of  other  judicial 
proceedings  that,  in  ordinary  matters,  an  appellate  authority  should 
exist:  which  would  not  be  the  case  here,  if  the  Commissioner  had 
in  all  things,  original  jurisdiction,  concurrent  with  that  of  the 
consuls;  and  this  anomaly  would  be  the  greater  in  the  matter,  in 
consideration  that  the  statute  gives  no  assessors  to  the  Commis- 
sioner." 

It  is  clear  enough  that  "an  appellate  authority  did  exist" 
in  the  Commissioner;  but  that  it  was  in  the  least  "anom- 
alous" or  inconsistent  with  his  original  jurisdiction  is 
purely  imaginary  fpr  such  a  system  is  not  at  all  uncommon. 
British  extraterritorial  Supreme  Courts  ^^  have  long  en- 
joyed both  original  and  appellate  jurisdiction  and  so  have 
many  American  courts.^-  Indeed,  since  the  consuls  were 
usually  laymen,  it  seems  to  us  much  more  "fitting"  that  a 
reserve  of  concurrent  jurisdiction  should  have  been  vested 
in  a  tribunal  presided  over  by  one  who  was  more  apt  to 
have  technical  legal  knowledge;  and  it  is  noteworthy  that 
the  model  court  of  the  law  reformers  is  an  unified  one  having 

"9  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  150,  sees.  7,  8,  9. 

"  China  and  Japan  Order  in  Council  (1865)  sec.  37  (H.  B.  M. 
Supreme  Court  for  China  and  Japan) ;  China  and  Japan  Order  in 
Council  (1878),  sec.  6  (5)    (H.  B.  M.  Supreme  Court  for  Japan). 

"  Following  are  a  few  taken  at  random : 

Iowa.      (District  Court)   Koons  v.  Dyer,  Morris,  127. 

Nebraska.  (District  Court)  Rev.  Stats.  (1913)  sec.  1205,  1237, 
8451. 

Philippines.  (Court  of  First  Instance)  Barrameda  v.  Moir,  25 
Philippine,  44. 


IN  RE  FITCH'S  ESTATE,  MAR.  8,  1919.  873 

jurisdiction  of  all  grades  and  kinds  of  causes.^^  As  Mr. 
Gushing  advanced  no  other  reasons  than  the  above  and 
cited  no  authorities,  his  argument  for  exclusive  consular 
jurisdiction  under  the  act  of  1848  seems  far  from  con- 
vincing. 

That  it  was  not  understood  by  his  contemporaries  to  be 
exclusive  seems  clear  from  the  fact  that  in  drafting  a  new 
act,  made  necessary  by  the  acquisition  of  extraterritorial 
rights  in  the  other  countries,^*  the  State  Department  ^'^ 
was  careful  to  insert  a  provision 

"That  the  jurisdiction  of  the  respective  ministers  in  the  countries 
hereinbefore  named,  where  the  same  is  allowed  by  treaty,  in  all 
matters  of  civil  redress  or  of  crimes,  except  in  the  cases  mentioned 
in  the  twenty-fourth  section,  shall  be  appellate  only."" 

And  this  wasMone  only  after 

"advantage  had  been  taken  of  the  views  presented  in  the  opinion  of 
the  late  Attorney-General,  Mr.  Gushing,  concerning  the  judicial 
powers  of  the  United  States  ministers  and  consuls  in  China  and 
Turkey."  " 

But  if  the  State  Department  had  accepted  those  "views" 
to  the  extent  of  agreeing  that  the  Commissioner's  jurisdic- 
tion was  already  "appellate  only"  such  a  provision  would 
have  been  wholly  unnecessary.  And  Congress  in  passing  it 
seems  to  have  adopted  the  view  that  a  change  was  needed 
in  order  to  make  the  consular  jurisdiction  exclusive. 

But  the  Act  of  1860  did  not  purport  to  abolish  the  office 
of  Commissioner  nor  to  take  away  his  original  jurisdic- 

'^  American  Judicature  Society  Bulletins,  VI,  IX;  Harley,  A  Unified 
Court  System. 

'^  The  Act  of  1848  "was  passed  in  reference  to  this  treaty  (China) 
and  to  that  with  the  Ottoman  Porte."     Dainese  v.  Hale,  ante,  p.  32. 
Meanwhile  treaties  granting  extraterritoriality  had  been  negotiated 
with    Borneo    (1850),    Siam    and    Persia    (1856),    and   Japan    (1857 
and  again  in   1858). 

""The  new  measure  was  prepared  wholly  in  the  Department  of 
State."     Moore,  Int.  Law  Dig.,  II,  624. 

''  Act  of  June  22,  1860,  12  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  176, 
p.  78,  sec.  27. 

"  Moore,  Int.  Law  Dig.,  II,  613. 


874  I  EXTRA.TFRRITORIAL  CASES. 

tion  ^^  "to  hear  and  decide  all  cases,"  etc.  It  seems  rather 
to  have  been  a  cumulative  one  applying  to  additional 
countries,  conferring  jurisdiction  upon  another  "func- 
tionary" (the  Minister)  but  leaving  in  force  existing 
provisions  for  such  need  as  might  arise.  Hence  it  did  not 
even  mention  the  Act  of  1848  and  repealed  ^'^  only  "incon- 
sistent provisions."  But  there  was  nothing  "inconsistent" 
between  these  two  acts.  The  first,  as  we  have  seen,  con- 
ferred jurisdiction  in  China  and  Turkey  -"  upon  "the  com- 
missioner and  the  consuls."  The  second  conferred  juris- 
diction in  other  countries  as  well  as  China  and  Turkey  upon 
"the  Minister  and  the  consuls."  In  the  other  countries  the 
Minister  alone  might  share  such  jurisdiction  with  the  con- 
suls but  in  China  there  was  nothing  to  prevent  the  Com- 
missioner also  from  sharing  it  with  them.  That  it  was  the 
intention  to  make  this  possible  seems  apparent  from  the 
fact  that  our  treaty  of  1858  with  China  confirmed  juris- 
diction in  the  "consul  or  othe?-  public  functionary"  ^^  while 
the  purpose  of  the  act  of  1860,  as  announced  in  its  title, 
was  "to  carry  into  effect  *  *  *  ^j^g  treaties  *  *  * 
giving  certain  judicial  powers  to  Ministers  and  consuls  or 
other  functionaries  of  the  United  States."  It  was,  there- 
fore, still  in  order  for  the  President,  if  he  chose,  to  appoint 


"  Such  could  not  have  been  the  effect,  as  regards  China,  of  the 
following  clause  of  section  22  of  the  act: 

"If  at  any  time  there  be  no  minister  of  the  United  States  in 
either  of  the  countries  hereinbefore  mentioned,  the  judicial  duties 
which  are  imposed  by  this  act  upon  the  minister,  shall  devolve 
upon  the  consul-general  or  consul  residing  at  the  capital  of  the 
country,  who  is  hereby  authorized  and  required  to  discharge  the 
same." 

For  there  has  never  been  either  "consul-general  or  consul  residing" 
at  Peking.  Besides  "the  judicial  duties"  of  the  minister  were,  for 
the  most  part,  appellate. 

"  Act  of  1860,  sec.  32. 

Neither  the  act  of  1848  nor  "any  portion  thereof"  seems  to  have 
been  "embraced  in  any  section  of  said  revision"  of  1873  and  hence 
could  not  have  been  repealed  thereby.  Besides  its  repeal  did  "not 
affect  the  right  to  any  oflRce" — such  as  the  Commissioner's. 

^"  Where  the  office  of  Commissioner  is  said  to  have  continued  for 
a  considerable  time. 

"Art.  XI,  ante,  p.  3. 


IN  RE  FITCH'S  ESTATE,  MAR.  8,  1919.  875 

a  Commissioner  for  China,  who  would  exercise  judicial 
authority  at  nisi  prius  under  the  Act  of  1848,  even  tho  his 
diplomatic  functions,  and  even  his  appellate  jurisdiction, 
might  be  absorbed  by  the  Minister. 

Nor  would  such  judicial  authority  be  lost  by  the  failure 
so  to  appoint.  That  would  merely  suspend  its  exercise. 
And  without  the  express  abolition  of  the  Commissioner's 
office  his  potential  jurisdiction  remained  and  so  long  as 
it  remained,  the  jurisdiction  of  the  consuls  could  not  be 
exclusive. 

Thus  the  law  seems  to  have  stood  when  the  act  was 
passed  establishing  this  court  and  conferring  upon  it 

"exclusive  jurisdiction  in  all  cases  and  judicial  proceedings  whereof 
jurisdiction  may  now  be  exercised  by  United  States  consuls  and 
ministers  by  law  and  by  virtue  of  treaties  between  the  United  States 
and  China,  except  in  so  far  as  the  said  jurisdiction  is  qualified  by 
section    two    of   this    Act." "' 

The  latter  provides: 

"The  consuls  of  the  United  States  in  the  cities  of  China  to  which 
they  are  respectively  accredited  shall  have  the  sa7ne  ju7'isdiction  as 
they  noiv  possess  in  civil  cases  where  the  sum  or  value  of  the  property 
involved  in  the  controversy  does  not  exceed  five  hundred  dollars 
United  States  money  and  in  criminal  cases  where  the  punishment 
for  the  offense  charged  can  not  exceed  by  law  one  hundred  dollars 
fine  or  sixty  days'  imprisonment,  or  both,  and  shall  have  power  to 
arrest,  examine,  and  discharge  accused  persons  or  commit  them  to 
the  said  court."  ^ 

Now  the  jurisdiction  which  they  then  "possessed"  was, 
if  we  are  correct  in  the  conclusion  just  announced,  subject 
to  the  original  jurisdiction  of  the  Commissioner  and  the 
Minister.  The  consuls  never  did  "possess"  exclusive  juris- 
diction ;  consequently  there  was  none  such  to  retain.  Their 
jurisdiction  having  always  been  concurrent,  it  so  continued ; 
and  just  as  it  had  previously  been  concurrent  with  that 
of  the  Commissioner  and  the  Minister,  so  now,  under  the 
Act  of  1906,  it  became  concurrent,  within  the  specified  lim- 
its, with  that  of  this  court. 

"  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Pt. 
I,  Sess.  I,  Ch.  3934,  sec.  1. 
^Id.,  sec.  2. 


876  I  EXTRATERRITORIAL  CASES. 

Nor  was  this  arrangement  merely  accidental.  For  it  is 
well  known  that  this  court  was  established  along  the  lines 
of  H.  B.  M.  Supreme  Court  for  China  (with  which  the 
author  of  the  organic  act,  Congressman  Denby,  was  some- 
what familiar,  having  lived  a  decade  in  China)-*  and  less 
than  two  years  before  the  passage  of  said  organic  act  an 
"Order  in  Council"  -^  had  been  promulgated  which  reenacted 
the  following  provision : 

"The  Supreme  Court  shall  have  in  all  matters,  civil  and  criminal, 
an  original  jurisdiction,  concurrent  with  the  jurisdiction  of  the  several 
Provincial  (Consular)  Courts,  to  be  exercised,  subject  and  according 
to  the  provisions  of  this  Order." 

It  is  not  uncommon  for  American  courts  of  equity  to 
study  their  model,  the  old  English  High  Court  of  Chan- 
(,gj.y  26  ^j^jj  fQj.  American  courts  of  law  to  study  their  model, 
the  King's  Bench,-''  and  other  common  law  tribunals,-®  in 
determining  any  doubtful  point  of  jurisdiction.  The  doc- 
trine seems  fully  applicable  here  and  to  require  that  the 
"Order  in  Council"  above  quoted  be  given  some  force. 

II. 

But  let  us  assume  that  this  court  did  not  acquire  con- 
current jurisdiction  with  the  consular  courts   under  the 

"  Far  Eastern  American  Bar  Association  Publications,  I,  14. 

"China  and  Korea  Order  in  Council   (1904),  sec.  23. 

''Federal.  Hovey  v.  McDonald,  109  U.  S.,  150,  27  L.  ed.,  888,  3 
Sup.  Ct.,  136. 

California.  City  of  Pasadena  v.  Superior  Court,  157  Cal.,  781, 
109  Pac,  620. 

Massachusetts.  Jones  v.  Boston  Mill  Corp.,  4  Pick.,  507,  16  Am. 
Dec,   358. 

Missouri.  State  ex  rel.  v.  Dearing,  180  Mo.,  53,  79  S.  W.,  454. 
And  see  the  writer's  article  "Equity,"  Am.  &  Eng.  Encyc.  of  Law 
(2nd  ed.),  11,  147,  154. 

"  "The  jurisdiction  of  the  K.  B.,  which  court  we  have  by  the 
revolution  succeeded,  was  declared  by  the  common  law."  Ex  parte 
Heath,  3  Hill   (N.  Y.),  42,  51. 

*'  Our  district  courts  *  *  *  are  invested  with  all  the  attributes 
of  common  law  tribunals,  to  the  same  extent  as  the  King's  Bench, 
Common  Pleas,  and  Exchequer  Courts  of  Westminster."  Davis 
County  V.   Horn,  4   G.   Greene    (la.),  94. 


IN  RE  FITCH'S  ESTATE,  MAR.  8,  1919.  877 

Act  of  June  30,  1906.  Nevertheless,  by  virtue  of  later 
legislation  we  think  the  same  result  followed  so  far  as  these 
cases  are  concerned.  Both  of  them  arose  in  the  consular 
district  of  Shanghai  and  the  consular  court  for  that 
district  has  had  a  legislative  history  of  its  own,  quite  dif- 
ferent from  that  of  the  other  American  Consular  Courts 
in  China.     More  than  a  decade  ago  Congress  enacted : 

"The  judicial  authority  and  jurisdiction  in  civil  and  criminal  cases 
now  vested  in  and  reserved  to  the  consul-general  of  the  United  States 
at  Shanghai,  China,  by  the  Act  of  June  thirtieth,  nineteen  hundred 
and  six,  entitled  'An  Act  creating  a  United  States  Court  for  China 
and  prescribing  the  jurisdiction  thereof,'  shall,  subsequent  to  June 
thirtieth,  nineteen  hundred  and  nine,  be  vested  in  and  exercised  by 
a  vice-consul-general  of  the  United  States,  to  be  designated  from 
time  to  time  by  the  Secretary  of  State,  and  the  consul- general  at 
Shanghai  shall  thereafter  be  relieved  of  his  judicial  functions." " 

It  seems  clear  that,  while  this  enactment  was  in  force, 
only  "a  vice-consul-general"  could  exercise  that  jurisdic- 
tion. But  less  than  six  years  later  Congress  passed  another 
act  providing  that 

"The  offices  of  vice-consul-general,  deputy  consul-general  and  de- 
puty consul  are  abolished"  ^° 

Here  again  British  legislation  for  China  may  have  been 
the  guide,  for  it  provides  that  all 

"jurisdiction,  civil  and  criminal,  including  any  jurisdiction  by  this 
Order  conferred  expressly  on  a  Provincial  Court,  shall,  for  and 
within  the  district  of  the  Consulate  of  Shanghai,  be  vested  exclusively 
in  the  Supreme  Court  as  its  ordinary  original  jurisdiction."*^ 

But  whatever  the  reason  the  conclusion  seems  irresivStible 
that  by  abolishing  the  "office  of  vice-consul-general"  Con- 
gress eliminated  the  only  functionary  who  was  then  au- 


'"Act  of  March  2,  1909,  35  U.  S.  Stats,  at  Large,  Pt.  I,  Sess.  II, 
Ch.  235,  p.  679. 

This  in  spite  of  the  fact  that  the  Secretary  of  State  (Hamilton 
Fish)  had  ruled  that  a  "deputy  consul  general"  was  not  a  "consular 
officer"  within  the  meaning  of  U.  S.  Rev.  Stats.,  sec.  4082.  See 
Moore,  International  Law  Digest,  II,  518.  Did  this,  then,  remain 
"a  consular  court"? 

^"Act  of  Feb.  5,  1915,  38  U.  S.  Stats,  at  Large,  Pt.  I,  Sess.  Ill, 
Ch.  23,  sec.  6,  p.  806. 

"China  and  Korea  Order  in  Council  (1904),  sec.  21. 


378  I  EXTRATERRITORIAL  CASES. 

thorized  to  hold  the  consular  court  for  the  district  of 
Shanghai  and  that  its  jurisdiction  thereby  lapsed.  And, 
since  the  jurisdiction  of  this  court  had  previously  been,  in 
said  consular  district,  "exclusive"  but  for  said  court,  its 
jurisdiction  was  necessarily  merged  in  that  of  this  court. 
Subsequently  a  "rider"  was  attached  to  the  Diplomatic 
and  Consular  Appropriation  act  providing: 

"The  judicial  authority  and  jurisdiction  in  civil  and  criminal  cases 
vested  in  and  reserved  to  the  consul  general  of  the  United  States  at 
Shanghai,  China,  by  the  Act  of  June  thirtieth,  nineteen  hundred  and 
six,  entitled  'An  Act  creating  a  United  States  Court  for  China,  and 
prescribing  the  jurisdiction  thereof,'  and  vested  by  the  Diplomatic 
and  Consular  Appropriation  Act  approved  March  second,  nineteen 
hundred  and  nine,  in  the  vice  consul  general  of  the  United  States 
to  be  designated  from  time  to  time  by  the  Secretary  of  State,  shall 
subsequent  to  the  approval  of  this  Act  be  vested  in  and  exercised 
by  a  vice  consul  of  the  United  States  at  Shanghai,  China."*' 

When  this  was  enacted,  and  ever  since,  there  have  been 
numerous  "vice  consuls  of  the  United  States  at  Shang- 
hai"— the  latest  accessible  State  Department  Register 
showing  no  less  than  eight — yet  it  will  be  seen  that  no 
provision  is  made  for  selecting  the  one  who  is  to  "exercise" 
this  "judicial  authority."  Suppose  more  than  one  should 
assume  to  act  in  a  particular  case:  which  would  have  the 
"authority"?  Is  a  litigant  free  to  apply  to  any  vice  consul 
for  judicial  relief  and  if  so  may  the  adversary  apply  to  a 
different  one?  These  are  some  of  the  inquiries  which  in- 
dicate that  the  "rider"  comes  dangerously  near  being  void 
for  uncertainty.  And  perhaps  for  that  reason  the  one 
now  actually  exercising  such  authority  is  not  a  vice  consul 
at  all,  but  a  consul  whose  commission,  notwithstanding  the 
repeal  above  mentioned,  purports  to  authorize  him 

"to  exercise  the  judicial  authority  and  jurisdiction  in  civil  and 
criminal  cases,  now  vested  in  and  reserved  to  the  Consul  General 
of  the  United  States  at  Shanghai,  China,  in  accordance  v^^ith  the 
provisions  of  the  Act  of  Congress  approved  March  2,  1909." 

"^  Act  of  March  4,  1915,  38  U.  S.  Stats,  at  Large,  Pt.  I,  Sess.  Ill, 
Ch.  145,  pp.   1122,  1123. 


IN  RE  PITCH'S  ESTATE,  MAR.  8,  1919.  879 

Be  that  as  it  may  the  rule  is  elementary  that  jurisdic- 
tional provisions  like  that  under  consideration  "cannot  be 
enlarged  by  intendment."'^  As  was  said  by  Chief  Justice 
Marshall  in  a  case  •''  where  it  was  sought  by  a  liberal 
construction  to  give  added  powers  to  the  Federal  Supreme 
Court : 

"Courts  which  are  created  by  written  law,  and  whose  jurisdiction 
is  defined  by  written  law,  cannot  transcend  that  jurisdiction." 

If  this  is  true  of  our  highest  tribunal  it  is  much  more  so 
of  the  consular  courts  which  are  "of  limited  jurisdiction."  ^^ 

III. 

But  whether  this  "rider"  was  effective  to  undo  the  pre- 
vious merger  and  recall  the  lapsed  jurisdiction,  we  need 
not  determine  in  order  to  decide  these  cases,  for  we  are 
convinced,  after  a  prolonged  research,  that  it  left  this  court 
with  at  least  concurrent  jurisdiction.  For  it  will  be  ob- 
served that  when  said  subsequent  act  was  passed,  the  lapsed 
jurisdiction  had  fully  accrued  to,  and  become  part  of,  this 
court's  "exclusive  jurisdiction."  The  subsequent  act  ex- 
presses no  intent  to  impair  that  nor  to  affect  this  court  in 
any  way  and 

"It  is  presumed  the  legislature  would  not  effect  a  measure  of  so 
much  importance  as  the  ouster  or  restriction  of  the  jurisdiction  of  the 
superior  courts  without  an  explicit  expression  of  its  intention."  '* 

"Statutes  which  merely  give  affirmatively  jurisdiction  to  one  court 
do  not  oust  that  previously  existing  in  another  court;  and  the 
jurisdiction  of  courts  of  equity,  or  of  the  higher  courts  proceeding 
according  to  the  course  of  the  common  law,  is  never  taken  away 
except  by  plain  words  or  by  an  equally  plain  intendment." " 

f  Baker  v.  Chisholm,  3  Tex.,   157. 

'*  Ex  parte  BoUman,  4  Cranch,  75,  2  L.  ed.,  561. 

'^  The  Spark  v.  Lee  Choi  Chum,  1  Sawy.,  713,  22  Fed.  Cas.,  871. 

In  approving  the  ruling  of  Minister  Seward  that  such  jurisdiction 
could  not  be  exercised  by  a  "consular  agent"  Secretary  Fish  "ruled 
that  the  judicial  power  in  question  could  be  exercised  only  by  'an 
officer  de  jure  as  well  as  de  facto,'  i.  e.,  an  officer  authorized  by  the 
terms  of  the  law  to  exercise  it."     Moore,  Int.  Law  Dig.,  II,  623. 

"  Endlich,  Interpretation  of  Statutes,  sec.  155. 

"  Black,  Interpretation  of  Laws,   123. 


880  I  EXTRATERRITORIAL  CASES. 

In  other  words,  when  jurisdiction  once  vests,  the  mere 
conferring  of  similar  jurisdiction  upon  another  court  does 
not  make  it  exclusive  but  only  concurrent/^"  Unless  in  the 
later  act  or  acts 

"there  are  prohibitory  or  restrictive  words  used,  the  uniform  inter- 
pretation is,  that  they  confer  concurrent  and  not  exclusive  remedial 
authority."  " 

In  the  leading  case  ***  an  act  of  Parliament  provided  that 
causes  upon  appeal  thereunder  should  be  finally  determined 
by  the  court  of  quarter  sessions  and  that  no  other  court 
whatsoever    "shall    intermeddle"   therewith.     It   was    con- 

^' England.     Rex  v.  Merely,  2   Burr.,  1040. 

Federal.  U.  S.  v.  Louisiana,  123  U.  S.,  32,  31  L.  ed.,  69;  Ames  v. 
Kansas,  111  U.  S.,  449,  28  L.  ed.,  482;  Bors  v.  Preston,  111  U.  S., 
252,  28   L.   ed.,   419. 

Alabama.  Barclay  v.  Plant,  50  Ala.,  509,  517;  Gould  v.  Hayes,  19 
Ala.,  438,  450;  Dement  v.  Admr.,  13  Ala.,  140,  143;  State  v.  Abram, 
4  Ala.,  272. 

California.     Courtv^rright  v.  Water  &  Mining  Co.,  30  Cal.,  573. 

Connecticut.     Loomis  v.  Bourn,  63  Conn.,  445,  28  Atl.,  569. 

Florida.     Hays  v.  McNealy,  16  Fla.,  409. 

Georgia.     Tritt  v.  Bize,  51   Ga.,  494. 

Illinois.     Nab  v.  Heald,  41  111.,  326. 

Indiana.     Redden  v.  Covington,  29  Ind.,  118. 

Iowa.  Koons  v.  Dyer,  Morris  (la.),  127;  Sterritt  v.  Robinson,  17 
la.  61;  Hummer  v.  Hummer,  3  G.  Greene,  42. 

Kansas.     Shoemaker  v.  Brown,  10  Kan.,  383. 

Kentucky.     Case  v.  Fishback,  10  B.  Mon.,  40. 

Maine.     Small  v.   Swain,  1   Me.,  133. 

Massachusetts.     Com.  v.  Hudson,  11   Gray,  64. 

Missouri.     State  ex  rel  Renick  v.  St.  Louis  Co.  Ct.,  38  Mo.,  402,  408. 

New  York.  Ex  parte  Heath,  3  Hill,  42;  Delafield  v.  Illinois,  2 
Hill,  159. 

North  Carolina.     Humphrey  v.  Wade,  70  N.  C,  280. 

Pennsylvania.     Kline  v.  Wood,  9  S.  &  R.,  294. 

South  Caroliyia.     State  v.  Glenn,  14  S.  C,  118. 

Tennessee.     Taylor  v.   Pope,  5  Coldw.,  413. 

Texas.    Johnson  v.  Happell,  4  Tex.,  96. 

Vermont.     First  Nat'l  Bank  v.  Hubbard,  49  Vt.,  1,  24  Am.  Rep.,  97. 

Washington.     Jones  v.  Reed,  3  Wash.,  57,  27  Pac,  1067. 

Wisconsin.     Gould  v.  Dodge,  30  Wis.,  621. 

"Story,  Equity  Jurisprudence  (13th  ed.),  sec.  80. 

'"Rex.  V.  Morely,  2  Burr.,  1040. 


IN  RE  FITCH'S  ESTATE,  MAR.  8,  1919.  881 

tended  that  this  ousted  all  the  courts  of  the  kingdom  and 
particularly  the  King's  Bench.     But  the  latter  declared 

"the  jurisdiction  of  this  court  is  not  taken  away,  unless  there  be 
express  words  to  take  it  away." 

In  Iowa,  the  district  court  had  jurisdiction  over  the 
persons  and  property  of  the  insane.  A  later  act  empow- 
ered the  probate  courts  to  appoint  guardians  for  the 
"management  of  all  insane  persons  *  *  *  and  their 
estates."  It  was  held  that  this  was  insufficient  to  divest 
the  district  courts  of  their  jurisdiction  which  they  continued 
to  exercise  concurrently  with  the  probate  courts, 

"The  district  court  in  this  state,"  said  the  Chief  Justice,"  "possesses 
the  jurisdiction  which  is  conferred  upon  those  courts  which  are 
designated  as  supenrior.  It  has  been  decided  that  the  jurisdiction  of 
such  courts  can  only  be  taken  away  by  express  words  of  repeal,  or 
irresistible  implication."  " 

In  Massachusetts  the  Court  of  Common  Pleas  has  general 
civil  and  criminal  jurisdiction.  In  1858  the  legislature 
passed  an  act  providing  that 

"  'the  several  justices  of  the  peace  authorized  to  hear  and  determine 
criminal  cases  shall  within  their  several  counties  have  jurisdiction' 
of  all  offences  which  may  be  punished  by  fine  not  exceeding  fifty 
dollars,  or  imprisonment  not  exceeding  six  months,  or  both." 

Notwithstanding  the  phrase  "all  offences"  the  Supreme 
Court,  in  an  opinion  by  its  most  eminent  member.  Chief 
Justice  Shaw,  held  that  the  act  did  not  take  away  the  juris- 
diction of  the  Common  Pleas  but  merely  made  it  concurrent 
tho  that  word  was  not  used  in  the  part  of  the  act  contain- 
ing the  language  construed  and  was  used  elsewhere  in 
reference  to  another  court.     The  learned  judge  said: 

"Before  this  statute  the  court  of  common  pleas  had  jurisdiction 
over  this  subject  matter.  Is  that  jurisdiction  taken  away?  It 
is  no  answer  to  say  that  another  tribunal  has  jurisdiction;  for  that 
Is  very  common.  It  is  in  such  case  concurrent  jurisdiction,  whether 
so  called  in  the  statute  or  not.  Then  is  the  jurisdiction  of  the  court 
of  common  pleas,  which  it  had  before,  taken  away?     There  must  be 

"  Hummer   v.    Hummer,    3    Greene,   42,    45.     Compare    Sterritt   v. 
Robinson,  17  la.,  61. 
'     ''Citing  8  Pick.  (Mass.),  453;  1  U.  S.  Dig.,  sec.  630  &  cit. 

14008   O.   W. 56 


882  I  EXTRATERRITORIAL  CASES. 

words  of  limitation  to  take  it  away,  either  by  using  the  word  'ex- 
clusive,' or  by  repealing  the  former  act  giving  jurisdiction,  by  which 
it  may  appear  that  the  legislature  meant  not  only  to  confer  juris- 
diction on  justices  of  the  peace,  but  also  to  take  away  the  other 
jurisdiction.  Here  are  no  words  indicating  that  it  should  be  exclusive, 
nor  repealing  any  specific  statute."  *^ 

This  reasoning  seems  fully  applicable  here.  The  Act  of 
March  15,  1915,  by  which  it  was  sought  to  revive  the  vice 
consul's  jurisdiction,  does  not  use  the  word  "exclusive" 
nor  purport  to  repeal  any  part  of  the  act  creating  the 
United  States  Court.  In  fact  it  does  not  mention  that 
court  at  all  and  shows  no  intention  to  take  away  its  juris- 
diction. 

In  Missouri  the  County  Court  had  jurisdiction  to  appoint 
guardians  for  habitual  drunkards.     Later 

"the  Legislature  passed  a  law  declaring  that  the  Probate  Court  of 
St.  Louis  county  should  have  jurisdiction  in  all  cases  arising  under 
an  act  entitled  'An  act  concerning  insane  and  other  persons,  incapable 
of  managing  their   affairs.' '' 

But  in  spite  of  this  attempted  grant  of  jurisdiction  "in  all 
cases"  to  the  Probate  Court,  the  Supreme  Court  said : 

"That  the  County  Court  possessed  full  and  complete  jurisdiction 
when  the  proceedings  were  initiated,  is  too  clear  to  require  any 
consideration.  Where  a  tribunal  originally  obtains  and  exercises 
jurisdiction,  that  jurisdiction  will  not  be  overturned  and  impaired 
by  any  legislative  enactment  unless  express  prohibitory  words  are 
used.  *  *  *  -pi^g  Probate  Court  of  the  county  of  St.  Louis  is  a 
court  of  limited  jurisdiction,  and  possesses  and  can  exercise  no  juris- 
diction except  what  is  specially  conferred  on  it  by  law.  And  where 
jurisdiction  has  been  obtained  and  conferred  on  another  court  and 
afterwards  the  same  is  extended  to  the  Probate  Court,  the  prior 
jurisdiction  will  not  be  ousted  without  words  of  exclusion.     *     *     * 

In  the  last  act  here,  there  is  nothing  that  can  be  construed  as  an 
intention  on  the  part  of  the  Legislature  to  confer  exclusive  jurisdic- 
tion on  the  Probate  Court.  It  must  therefore  be  deemed  and  taken 
as  simply  concurrent  with  the  County  Court."  ** 

A  Kansas  act  gave  justices  of  the  peace  "original  juris- 
diction of  civil  actions  for  the  recovery  of  money  only, 
where  the  amount  claimed  does  not  exceed  $300."  But 
the  State  Supreme  Court  in  an  opinion  by  Brewer,  J.,  later 
of  the  Federal  Supreme  Court,  held  that  the  district  court 

^'Com.  V.  Hudson,  11  Gray  (Mass.)   64   (1858). 

*"  State  ex  rel.  Renick  v.  St.  Louis  Co.  Ct.,  38  Mo.  402    (1866). 


IN  RE  FITCH'S  ESTATE,  MAR.  8,  1919.  883 

was  not  ousted  of  its  jurisdiction  by  said  act  but  continued 
to  function  concurrently. 

"The  district  court,"  said  Justice  Brewer,"  "is  a  court  of  general 
original  jurisdiction  of  all  matters,  both  civil  and  criminal.  *  *  * 
Unless  jurisdiction  in  any  matter  is  elsewhere  located  in  such  manner 
as  to  exclude  that  court,  it  has  jurisdiction.  The  mere  granting  of 
original  jurisdiction  in  ordinary  actions  to  other  tribunals  does  not 
of  itself  operate  as  an  exclusion.  Both  acts  may  stand, — both  tri- 
bunals have  jurisdiction.  The  maxim,  expressio  unias,  exclusio  alter- 
ius,  does  not  apply,  for  both  tribunals  are  granted  jurisdiction." 

An  Act  of  Congress  provided 

"That  the  probate  courts  of  the  Territory  of  Idaho,  in  their  re- 
spective counties,  in  addition  to  their  probate  jurisdiction,  be,  and 
they  are  hereby  authorized  to  hear  and  determine  all  civil  causes 
wherein  the  damage  or  debt  claimed  does  not  exceed  the  sum  of 
five  hundred  dollars,  exclusive  of  interest,  and  such  criminal  cases 
arising  under  the  laws  of  the  Territory  as  do  not  require  the  inter- 
vention of  a  grand  jury:  Provided,  That  they  shall  not  have  juris- 
diction in  any  matter  in  controversy,  when  the  title,  boundary,  or 
right  to  the  peaceable  possession  of  land  may  be  in  dispute,  or  in 
chancery  or  divorce  cases:  And  provided  further.  That  in  all  cases 
an  appeal  may  be  taken  from  any  order,  judgment,  or  decree  of 
said  probate  courts  to  the  district  court."  ^^ 

Notwithstanding  the  proviso  and  the  inclusion  of  "all 
civil  causes,"  it  was  held  *^  that  the  jurisdiction  thus  con- 
ferred was  merely  concurrent  with  that  of  the  district 
courts. 

Applying  to  the  case  at  bar  the  doctrine  of  these  deci- 
sions, we  find  that  the  "rider"  above  quoted,  and  by  which 
the  lapsed  jurisdiction  is  claimed  to  have  been  recalled, 
contains  no  "prohibitory  or  restrictive"  words,  no  "express 
words  to  take  awaiy"  the  vested  jurisdiction  of  this  court, 
no  "words  of  repeal  or  irresistible  implication"  no  "words 
of  exclusion."  It  fails,  therefore,  to  meet  any  of  the  tests 
imposed  in  said  decisions. 

It  is  true  that  the  "rider"  purports  to  confer  upon  "a  vice 
consul"   jurisdiction   previously   exercised   by    (and   taken 

''Henderson  v.  Kennedy,  9  Kan.,  113,  (163),  144,  (166),  (1872). 
Compare  Gould  v.  Dodge,  30  Wis.,  621,  623    (1872). 

''  Act  of  Dec.  13,  1870,  Sess.  Ill,  Ch.  I,  16  U.  S.  Stats,  at  Large, 
395. 

"Greathouse  v.  Heed,  1  Idaho,  494    (1873). 


884  I  EXTRATERRITORIAL  CASES. 

away  from)  other  officers.  But  it  will  be  remembered  that 
the  other  chief  exponent  of  the  exclusive  character  of  such 
jurisdiction  admitted  that  "it  is  nowhere  said  by  the  statute, 
in  so  many  words"  **  to  be  exclusive.  The  doctrine  of  the 
decisions  (mostly  after  Mr.  Cushing's  day)  is,  as  we  have 
seen,  that  it  must  be  said  "in  so  many  words."  Not  having 
been  so  said,  and  quite  apart  from  the  question  whether  it 
was  in  fact  exclusive,  the  phraseology  of  the  "rider"  is 
clearly  insufficient  to  confer,  at  most,  more  than  concur- 
rent jurisdiction. 

In  cause  No.  736  it  is  alleged  that  there  are  certain  "cash 
deposits  *  *  *  at  Cleveland,  Ohio,  estimated  at  $800 
and  it  is  claimed  that  this  sum  should  be  added  to  the  items 
of  local  assets  (less  than  G.  $500)  to  make  the  jurisdic- 
tional amount.  But  in  view  of  the  conclusion  just  an- 
nounced it  is  likewise  unnecessary  to  determine  that  question 
here.  For,  regardless  of  the  amount  and  under  either  of 
the  views  above  expressed,  this  court  has,  and  must  exer- 
cise, jurisdiction  in  both  causes.^^ 

The  demurrers  are  accordingly 

OVERRULED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

KUNG  Che  et  al.,  Plaintiffs,  v.  Arkell  &  Douglas,  Inc., 

Defendant. 

[Cause  No.  755.] 

Loo  Wei  Chong  et  al.,  Plaintiffs,  v.  Arkell  &  Douglas, 
Inc.,  Defendant. 

[Cause   No.   756.] 
[Filed  March  26,   1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  INJUNCTION:   GROUNDS.     Like  other  equitable  remedies,  injunction 
is  available  only  in  the  absence  of  an  adequate  remedy  at  law. 

*'  Gushing,  Opinions  Attorneys  General,  VII,  507. 

**  At  the  next  regular  session  of  Congress  after  the  announcement 
of  this  decision  an  act  was  passed  which  transferred  to  the  Commis- 
sioner of  the  United  States  Court  all  the  remaining  judicial  functions 
of  the  Vice  Consul  at  Shanghai.      (See  41  U.  S.  Stats,  at  Large.) 


RUNG  CHE  V.  ARKELL  &  DOUGLAS,  MAR.  26,  1919.        885 

2.  Id.  :  Id.     When  sought  as  ancillary  to  the  main  relief  right  to  the 

latter   must  be   clear. 

3.  RESCISSION  as  a  contractual  right  distinguished  from  cancellation 

as   an    equitable    remedy,  the    former   being    available    without 

resort   to   the    courts   but  only   for   extreme   and   fundamental 
grounds. 

4.  Id.:    Grounds.     It  seems   at  least  doubtful  whether  the  right  to 

rescind  arises  from  the  mere  delivery  of  goods  not  specified  in 
the  contract. 

Mess7's.  Jernigan,  Fessenden  &  Rose,  by  Mr.  Rose,  for 
complainants. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming,  for  de- 
fendants. 

LOBINGIER,  J.: 

These  are  bills  in  equity  each  praying  for  the  rescission 
of  a  certain  contract  therein  mentioned,  that  complainants 
be  saved  harmless  from  liability  upon  certain  drafts  drawn 
in  pursuance  of  said  contract  and  for  an  injunction  to 
restrain  the  defendants  from  suing  thereon  in  another 
court.     In  cause  No.  755  it  is  alleged  that — 

"defendant  tendered  delivery  to  the  plaintiffs  as  the  goods  sold 
under  the  said  contract  and  that  subsequent  to  the  acceptance  of 
the  draft  as  aforesaid  and  within  a  reasonable  time  after  their 
arrival,  the  plaintiffs  examined  the  goods  above  mentioned  and, 
finding  that  they  are  not  up  to  the  specifications  called  for  by  the 
contract,  refused  to  accept  the  same  and  thereupon  rescinded  the 
contract  and  on  the  21st  day  of  March,  1919,  did  notify  the  defendant 
thereof  in  writing  and  did  request  the  defendant  to  arrange  with 
the  said  Philippine  National  Bank  that  the  plaintiffs  should  be 
released  from  their  acceptance  of  the  draft  as  aforesaid,"  etc. 

In  cause  No.  756  it  is  alleged  that — 

"plaintiffs  refused  to  accept  the  said  draft  because  they  had  been 
informed  that  the  goods  shipped  were  not  up  to  contract  specifica- 
tions and  notified  the  defendants  in  writing  to  that  effect." 

It  is  urged  that  as  this  Court  is  given  jurisdiction  by  the 
filing  of  the  present  suit  the  entire  controversy  should  be 
adjudicated  here  and  that  an  injunction  should  be  granted 
in  order  to  prevent  a  multiplicity  of  actions.^  If  this  were 
a  case  where  the  jurisdiction  of  the  court  to  grant  the  main 

^  Citing,  Ruling  Case  Law,  349. 


886  I  EXTRATERRITORIAL  CASES. 

relief  sought  were  clear,  the  doctrine  relied  upon  might 
be  applied  in  issuing  the  injunction  as  ancillary  relief. 
But  an  examination  of  the  bills  fails  to  disclose  a  clear 
right  to  the  main  relief  prayed,  to  wit,  a  decree  for  the 
rescission  of  the  contracts.  Indeed  it  will  be  seen  that 
complainants  according  to  their  averments,  have  already 
"rescinded."  Now  if  the  failure  to  deliver  according  to 
the  specifications  justified  rescission  at  all  they  appear  to 
have  exercised  their  right  to  the  full  extent  necessary. 
For 

"Rescission  *  *  *  is  a  right  of  the  complainant,  and  not 
a  means  for  the  assertion  thereof;  it  is  an  equity,  rather  than  an 
equitable  remedy." ' 

It  is  true  that  equitable  jurisdiction  is  not  infrequently 
exercised  for  the  purpose  of  relieving  the  suitor  from  a 
contractual  obligation;  but  this  is  generally  upon  grounds 
like  "fraud  and  mistake"  ^  which  vitiate  the  transaction 
ab  initio.  Moreover,  the  usual  purpose  of  equitable  inter- 
vention in  such  cases  is  to  prevent  the  use  of  some  docu- 
mentary evidence  of  the  agreement  and  the  remedy,  there- 
fore, is  more  properly  cancellation  *  than  rescission  which, 
as  already  noted,  is  rather  a  iHght  which  accrues  to  a 
contracting  party  under  special  circumstances  and  which 
may  be  utilized  without  necessarily  seeking  judicial  aid  at 
all.  For  if  one  is  entitled  to  rescind  a  contract  he  need 
only  wait  until  the  other  party  seeks  to  enforce  it  and 
then  off'er  by  way  of  defense  the  grounds  of  rescission. 
There  is,  in  other  words,  a  clear  distinction  between  the 
contractual  7^ight  to  rescind  and  the  equitable  remedy  of 
cancellation,  sometimes  less  properly  known  as  rescission. 

But  from  the  bills  before  us  it  is  not  at  all  clear  that 
complainants  were  entitled  to  rescind.  As  declared  in  a 
work  of  authority: 

"The  right  to  rescind  *  *  *  is  an  extreme  one  and  does  not 
arise  from  every  breach.  *  *  *  xhe  general  rule  is  that  rescis- 
sion will  not  be  permitted  for  a  slight  or  casual  breach  of  the 
contract,  but  only  for  such  breaches  as  are  so  substantial  and  fun- 


*  Bispham,  Principles  of  Equity    (7th  ed.),  652. 

"Id.,   653. 

'  Pomeroy,  Equity  Jurisprudence   (4th  ed.),  V,  sec.  2105  et  seq. 


IN    RE   BIDDLE'S    will,    APR.    7,    1919.  887 

damental  as  to  defeat  the  object  of  the  parties  in  making  the  agree- 
ment. Mere  delay  in  the  execution  of  a  contract,  the  terms  of  which 
will  be  satisfied  by  performance  within  a  reasonable  time,  does  not 
in  itself  entitle  the  other  party  to  rescind;  but  to  have  this  effect, 
the  implication  arising  from  nonperformance  of  the  contract  must 
be  inconsistent  with  its  being  still  in  forced  * 

Now  it  is  not  even  alleged  in  these  bills  that  the  time 
for  delivery  has  yet  expired.  It  is  alleged  indeed  that  the 
goods  tendered  or  en  route  are  not  such  as  the  contract 
requires  but,  for  aught  that  appears,  time  still  remains 
for  delivering  the  specified  sort.  Besides  a  cursory  exam- 
ination has  disclosed  no  case  where  the  right  of  rescission 
was  upheld  upon  the  mere  ground  of  non-delivery.  For  in 
such  a  case  an  action  for  damages  lies  and  would  seem  to 
be  adequate.     If  so  equity  will  not,  of  course,  interfere. 

Complainants'  right  to  the  main  relief  sought  is  conse- 
quently far  from  clear  and  the  injunction  which  is  prayed 
as  ancillary  relief  must  therefore  be  denied  regardless  of 
whether  proceedings  in  a  foreign  court  will  be  enjoined 
in  aid  of  a  bill  setting  forth  clear  grounds  for  equitable 
intervention. 

IT  IS  so  ORDERED.*' 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Charles  A.  Biddle's  Will. 

[Cause  No.  759;  filed  April  7,  1919.] 

SYLLABUS. 

(By  the  Court.) 

WILLS:  Beneficiaries:  Subsequent  Divorce.  A  devise  to  "my  wife, 
Mrs.  Eleanor  Biddle"  is  not  revoked  by  the  subsequent  divorce 
of  the  beneficiary,  tho  at  her  instance. 

Messrs.  Fleming  &  Davies,  by  Mr.  Davies,  for  petitioner. 
No  appearance  contra. 

"  Corpus  Juris,  XIII,  613.  "A  slight  or  partial  neglect  on  the 
part  of  one  of  the  contracting  parties  to  observe  some  of  the  terms 
or  conditions  thereof,  will  not  justify  the  other  party  at  once  to 
abandon  the  agreement."     Weintz  v.  Hafner,  78  111.,  27. 

'  These  causes  were  subsequently  dismissed  upon  motions  of  the 
respective  plaintiffs.     Ed. 


388  I  EXTRATERRITORIAL  CASES. 

LOBINGIER,  J.: 

The  due  execution  of  the  instrument  here  offered  for 
probate,  as  well  as  the  testamentary  capacity  of  the 
testator,  has  been  sufficiently  proved  and  the  only  legal 
question  which  appears  likely  to  arise  in  the  case  concerns 
the  capacity  of  the  beneficiary  who  is  named  in  the  in- 
strument as  "my  wife,  Mrs.  Eleanor  Biddle."  As  she  is 
likewise  named  as  executrix,  and  as  her  rights  in  either 
capacity  appear  to  be  the  same,  it  seems  advisable  to  settle 
the  question  at  the  outset. 

The  instrument  was  executed  before  the  consular  au- 
thorities on  January  28,  1918.  It  appears  from  the  records 
of  this  Court  that  on  January  14,  1919,  a  decree  of  absolute 
divorce  was  granted  the  wife  and  the  question  arises 
whether  such  decree  alone,  there  having  been,  according 
to  the  testimony,  no  express  revocation  of  the  instrument, 
deprives  the  petitioner  of  her  right  to  take  under  the  will. 
The  current  of  authority  appears  to  be  uniform  to  the 
effect  that,  where  she  is  mentioned  by  name,  the  word 
"wife"  will  be  treated  as  descriptive  only,  and  the  mere 
fact  that  she  subsequently  ceases  to  be  such  will  not  effect 
a  revocation  of  the  will.^ 

In  one  of  these  authorities  the  reason  for  the  doctrine 
is  stated  as  follows: 

"Can  it  be  said  that  the  obtaining  by  the  wife  of  a  divorce  by 
reason  of  the  misconduct  of  the  testator  entailed  upon  him  any  moral 
duty  to  destroy  the  provision  which  he  had  made  in  his  will  for  the 
woman   who   was   for  years   his   faithful  wife,   in   order  to   pile  up 

^  California.     In  re  Gruendike's  Estate,  154  Cal.,  628,  98  Pac,  1057. 

New  Jersey.     Bullock  v.  Zilley,  I.  N.  J.  Eq.,  489. 

New  York.  Davis  v.  Kerr,  3  N.  Y.  App.  Div.,  322,  38  N.  Y. 
Supp.,   387. 

Ohio.     Charlton  v.  Miller,  27  Ohio  St.,  298,  22  Am.  Rep.,  307. 

Pennsylvania.  In  re  Jones'  Estate,  211  Pa.  St.,  364,  69  L.  R.  A., 
940,  60  Atl.,  915,  107  Am.  St.  Rep.,  581,  3  Ann.  Cas.,  221,  10  Prob. 
Rep.  Ann.,  490  (affirming  29  Pa.  Co.  Ct.,  593)  ;  Mellon's  Estate,  28 
W.  N.  C,  120;  Sharpe's  Estate,  15  W.  N.  C,  419. 

England.  See  Boddington  v.  Clairat,  L.  R.  25  Ch.  Div.,  685,  where 
a  legacy  to  the  wife  by  name  was  upheld  but  the  bequest  of  an  an- 
nuity "so  long  as  she  shall  continue  my  widow  and  unmarried"  was 
declared  inoperative. 


SUNG  KYA  YI  V.  DODGE  ET  AL.,  APR.  8,  1919.     889 

far  more  than  a  competency  for  their  child?  The  only  inference 
which  can  be  drawn  from  the  record  in  this  case  is  that  the  testator, 
and  he  alone,  was  responsible  for  the  rupture  of  the  marital  ties. 
It  may  well  be,  then,  that  by  the  provision  in  his  will  he  intended  to 
make  some  reparation  for  the  sorrow  and  distress  he  brought  upon 
his  wife.  To  impute  to  him  such  intention  would  be  more  kind  than 
to  presume,  as  is  urged  in  the  argument,  that  he  was  filled  with 
resentment,  and  became  possessed  by  an  ignoble  purpose  which  he 
failed  to  carry  out.  He  must  have  known  that  he  could  change  or 
destroy  his  will  at  any  time;  yet  he  did  not."  ^ 

A  different  interpretation  is  required  where  the  bequest 
is  to  the  "widow"  -  or  where  a  division  of  the  property  is 
made  at  the  time  of  the  divorce.  Neither  of  these  quaUfi- 
cations  affects  this  case,  however,  and  the  petitioner  is 
accordingly  entitled  both  to  act  as  executrix  and  to  take 
under  the  will.  Letters  Testamentary  may  issue  to  her 
upon  taking  and  subscribing  the  oath,  bond  being  expressly 
waived  by  the  testator. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Sung  Kya  Yi,  Plaintiff,  v.  Dodge  &  Seymour  (China), 
Ltd.,  Defendant. 

[Cause  No.  761;  filed  April  8,  1919.] 

SYLLABUS. 
(By  the  Court.) 

COSTS    AND    FEES:     REMISSION.     No    authority    found    for    remitting 
costs  and  fees  to  a  foreign  plaintiff  tho  suing  in  forma  'pauperis. 

Messrs.  Rodger  &  Haskell,  by  Mr.  Haskell,  for  the  motion. 
No  appearance  contra. 

LOBINGIER,  J.: 

A  motion  is  here  presented  "for  leave  to  sue  in  forma 
pauperis  *  *  *  upon  the  ground  that  the  plaintiff  is 
without  sufficient  means  to  pay  the  court  fees." 

^In  re  Jones'  Estate,  211  Pa.  St.,  364,  69  L.  R.  A.,  940,  60  Atl., 
915,  107  Am.  St.  Rep.,  581,  3  Ann.  Cas.,  221,  10  Prob.  Rep.  Ann.,  490 
(affirming  29  Pa.  Co.  Ct.,  593). 

*Cyc.,  XL,  1456   (82). 


890  I    EXTRATERRITORIAL    CASES. 

The  organic  act  establishing  this  Court  provides  that — 

"The  tariff  of  fees  of  said  officers  of  the  court  shall  be  the  same 
as  the  tariff  fixed  for  the  consular  courts  in  China."  ^ 

At  the  time  of  this  enactment  "the  tariff  already  fixed 
for  the  consular  courts"  was  in  the  form  of  a  regulation 
by  the  Minister  adopted  in  1888  but  neither  in  it  or  in 
any  of  the  other  consular  court  regulations  have  we  found 
authority  for  remitting  fees  to  any  litigant.  In  1892  Con- 
gress passed  an  act  -  which  authorizes  the  granting  of  such 
relief  to  "any  citizen  of  the  United  States"  but  the  plaintiff 
alleges  that  he  is  not  such.  It  is  true  that  Congress  after- 
wards passed  a  special  act  ^  for  the  District  of  Columbia 
which  does  not  impose  such  limitation,  and  it  is  also  true 
that  such  acts  are  considered  "laws  of  the  United  States" 
and  as  such  are  extended  here  when  no  general  act  of 
Congress  is  applicable.  But  we  have  held  in  several  cases  * 
that  where  there  is  both  a  general  and  a  special  act  of 
Congress  on  the  same  subject  the  former  will  be  considered 
as  the  one  extended  here. 

There  being  no  authority  for  the  remission  of  costs  in 
a  case  like  this  the  motion  must  be 

DENIED.^ 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
JUDAH  I.  Ezra,  Plaintiff,  v.  W.  L.  Merriman,  Defendant. 

[Cause  No.  701;   filed  April  9,  1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  COSTS,  distinguished  from  fees. 

2.  Id.:    Authority    for    Taxation.     In    the    absence    of    provisions 

in  the  Court  Regulations  now  or  later  relative  to  costs,  resort 

*  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Part 
I,    Ch.   3934,   sec.   9. 

'Act  of  Congress  of  July  20,  1892,  Sess.  I,  27  U.  S.  Stats,  at 
Large,  Ch.  209,  sec.  1,  p.  252. 

'Act  of  Congi-ess  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.   176. 

*  United  States  v.  Diaz,  ante,  p.  784;  Ezra  v.  Merriman,  ante,  p.  809. 
'  A  similar  order  had  been  made  in  April,  1918,  upon  application 

to  file  w^ithout  fees  the  case  of  Mortkeevitch  v.  Bagaman. 


EZRA  V.  MERRIMAN,  APR.   9,   1919.  891 

may  be  had  to  the   Revised   Statutes  which   prevail   over   any- 
special  Act  of  Congress. 
3.  Id.:   Id.:   Taking  Depositions.     Under  Revised  Statutes,  sec.  824, 
costs    are    taxable    for    depositions    only    when    "admitted    in 
evidence." 

Messrs.  Jernigan,  Fessenclen  &  Rose,  by  Mr.  Rose,  for 
the  motion. 
Allison  D.  Gibbs,  Esq.,  contra. 


LOBINGIER,  J.: 

This  is  a  motion  to  require  plaintiff,  at  whose  instance 
this  cause  was  dismissed,  to  pay  "the  necessary  expenses" 
of  taking  certain  depositions  which  were  filed  in  the  Clerk's 
office.  The  motion  is  based  on  a  provision  of  the  special 
act  ^  of  Congress  relating  to  Alaska  which  reads  as  follows : 

"A  party  entitled  to  costs  shall  also  be  allowed  for  all  necessary 
disbursements,  including  the  fees  of  officers  and  witnesses,  the  neces- 
sary expenses  of  taking  depositions  by  commission  or  otherwise, 
the  expenses  of  publication  of  the  summons  or  notices,  and 
the  postage  where  the  same  are  served  by  mail,  the  compensation 
of  referees,  and  the  necessary  expense  of  copying  any  public  record, 
book,  or  document  used  as  evidence  on  the  trial." 

We  cannot  agree  with  plaintiff's  counsel  that  the  sole 
authority  for  taxing  costs  in  this  jurisdiction  is  found  in 
the  Court  Regulations.  It  is  true  that  the  organic  act 
provides  that  "the  tariff  of  fees  of  said  officers  of  the 
Court  shall  be  the  same  as  the  tariff  already  fixed  for  the 
consular  courts  in  China."  -  But  the  terms  "fees"  and 
"costs"  are  not  synonymous.  The  former  include  compen- 
sation to  the  officer;  the  latter  often  afford  reimbursement 
to  the  litigant.^  Now  the  provision  above  quoted  from  the 
organic  act  purports  to  cover  only  the  "fees  of  said  offi- 
cers," i.  e.,  marshal,  clerk,  etc.  It  does  not  attempt  to 
prescribe  the  costs  which  may  be  awarded  to  a  party. 

'  Act  of  June  6,  1900,  Sess.  II,  31  U.  S.  Stats,  at  Large,  Ch.  786, 
Tit.  II,  sec.  513. 

•  Act  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Ch.  3934,  sec.  9. 
'  Corpus  Juris,  XV,  20. 


392  I    EXTRATERRITORIAL    CASES. 

Doubtless  in  many  instances  these  would  include  fees  which 
the  party  had  paid,  but  not  merely  such. 

The  principal  Federal  legislation  *  regarding  costs  was 
first  enacted  in  1853  and  was  subsequently  extended  to  the 
territories  ^  and  reenacted  '^  in  the  District  of  Columbia  so 
late  as  March  3,  1901.  Now  we  have  already  held  in 
several  cases  ^  that  where  there  is  both  a  general  and  a 
special  act  of  Congress  covering  the  same  subject  the 
former  prevails.  Moreover,  where  there  are  two  special 
acts  on  the  same  subject  the  later  will  ordinarily  be  applied. 
In  this  instance  the  provision  of  the  Revised  Statutes  re- 
lating to  costs  is  both  a  general  act  and  is  also,  by  virtue 
of  its  reenactment  for  the  District  of  Columbia,  a  later  one 
than  that  invoked  by  defendant's  counsel.  It  may  be  that 
the  latter  is  more  suitable,  i.  e.,  a  more  equitable  provi- 
sion— but  it  does  not  follow  that  the  general  law  is  un- 
suitable. On  the  contrary  we  think  it  both  suitable  and 
applicable  and  we  should  not  be  justified  in  ignoring  it 
merely  because  an  earlier  and  special  act  might  seem  to  us 
more  suitable. 

The  general  act  allows  "for  each  deposition  taken  and 
admitted  in  evidence  in  a  cause,  two  dollars  and  fifty 
cents."  '^  As  this  cause  was  dismissed  before  trial,  no 
depositions  were  off'ered  in  evidence  and  consequently  none 
could  be  admitted.  And,  under  what  seems  to  us  the  only 
natural  construction  ^  of  the  statute,  that  item  of  costs  is 
not  taxable. 

The  motion  is  accordingly 

OVERRULED. 

*  Act  of  Congress  of  February  26,  1853,  Sess.  II,  10  U.  S.  Stats, 
at  Large,  Ch.  80,  p.  161;  U.  S.  Rev.  Stats.,  823  et  seq. 

'  U.  S.  V.  Averill,  130  U.  S.,  335,  32  L.  ed.,  977. 

'  31  U.  S.  Stats,  at  Large,  Ch.  854,  sees.  1108  et  seq. 

''  United  States  v.  Diaz,  ante,  p.  784;  Ezra  v.  Merriman,  ante,  p.  809; 
Sung  Kya  Yi  v.  Dodge  &  Seymour  (China),  Ltd.,  ante,  p.  889. 

'U.  S.  Rev.  Stats,  sec.  824;  D.  C.  Code,  sec.  1109. 

'Corpus  Juris,  XV,  138   (68). 


IN  RE  bell's  will,  APR.  14,  1919.         893 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Amy  Bell's  Will. 

[Cause   No.   753;   filed   April   14,   1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  WILLS:    Codicils:    Holographic  codicils  are  valid  in  this  juris- 

diction. 

2.  Id.:  Id.:  A  codicil  may  be  holographic  tho  the  original  instrument 

was  regularly  subscribed  and  attested. 

3.  Id.  :   Id.  :   The  codicil  may  take  the  form  of  an  erasure  and  inter- 

lineation provided  it  is  in  the  decedent's  handwriting  and  duly 
proved. 

Messrs.  Jernigan,  Fessenden  &  Rose,  by  Mr.  Fessenden, 
for  the  proponents. 

Messrs.  Fleming  &  Davies,  by  Mr.  Fleming  ■  for  other 
parties  interested. 

LOBINGIER,  /.  ; 

The  testimony  of  the  two  subscribing  witnesses  appears 
to  be  sufficient  as  to  the  due  execution  of  the  instrument 
here  offered  for  probate  and  also  as  to  the  capacity  of  the 
testatrix.  It  was  executed  while  the  testatrix  was  in  a 
hospital.  As  originally  drawn  its  first  clause  bequeathed 
the  personal  estate  of  the  testatrix  "to  Annie  Bell,  sister  of 
my  late  husband,  John  A.  Bell."  It  appears  that  the  in- 
strument was  then  placed  in  the  custody  of  a  Spanish  cleric, 
Padre  Castrillo,  and  that  about  three  weeks  after  its  execu- 
tion the  testatrix  came  to  him  in  company  with  her  sister, 
Mrs.  Belyea,  asked  for  the  instrument,  crossed  out  the  word's 
above  quoted  and  wrote  instead  of  the  name  there  written 
*'my  sister,  A.  U.  Belyea.  A.  Bell."  The  testatrix  also 
stated,  according  to  Padre  Castrillo,  that  she  wished  to 
give  the  property  to  her  sister. 

An  holographic  will  is  valid  in  this  jurisdiction  according 
to  prior  decisions  of  this  Court  ^  and  where  such  is  the  case 

^  In  re  Allen's  Will,  ante,  p.  92.  In  re  Lucy  Lucker's  Will,  ante, 
p.  626.     In  re  Kavanaugh's  Will,  ante,  p.  842. 


g94  I    EXTRATERRITORIAL    CASES. 

an  holographic  codicil  is  likewise  permitted.-  Moreover, 
the  codicil  may  be  holographic  even  tho  the  original  instru- 
ment was  regularly  subscribed  and  attested.^  The  codicil, 
too,  may  take  the  form  of  an  erasure  and  interlineation  as 
here '  and  the  effect  is  to  republish  the  whole  instrument 
as  modified  by  the  codicil.'^ 

Such  being  the  law  we  think  there  can  be  no  doubt  that 
the  interlineation  effected  by  the  testatrix  in  her  own  hand- 
writing and  in  the  presence  of  witnesses  was  a  valid  codicil 
and  resulted  in  substituting  the  beneficiary  then  named  for 
the  previous  one.  Indeed  the  latter  offered  no  opposition 
to  the  probate  of  the  instrument  as  modified,  tho  represented 
by  counsel  and  tho  opportunity  was  given  both  by  published 
and  actual  notice  and  by  adjournment  for  that  purpose. 

It  is  accordingly  considered  and  decreed  that  the  instru- 
ment "Ex.  A"  attached  to  the  petition  be  admitted  to  probate 
as  the  last  will  and  testament  of  the  said  deceased  and  that 
letters  testamentary  issue  to  the  parties  therein  named  as 
executors  upon  their  taking  the  oath  and  (in  the  case  of 
one)  submitting  to  the  jurisdiction  of  this  Court,  bond 
being  expressly  waived. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Trinidad's  Will. 

[Cause  No.  688;  filed  April  17,  1919.] 
SYLLABUS. 

(By  the  Court.) 

1.  WILLS:  Interpretation.  Particular  directions  prevail  over  gen- 
eral provisions  in  a  w^ill  vv^hen  such  is  clearly  the  testator's 
intent. 

''Maryland.     Brown's  Ex'r  v.  Tilden,  5  H.  &  J.,  371. 

Montana.  Barney  v.  Hays,  11  Mont.,  571,  29  Pac,  282,  28  Am. 
St.  Rep.,  495. 

Virginia.  Perkins  v.  Jones,  84  Va.,  358,  4  S.  E.,  833,  10  Am. 
St.  Rep.,  863. 

'In  re  Soher,  78  Cal.,  477,  21  Pac,  8;  Barney  v.  Hayes,  11  Mont., 
99,  27  Pac,  384. 

*  LaRue  v.  Lee,  63  W.  Va.,  388,  60  S.  E.,  388,  13  Prob.  Rep.,  442. 

'  In  re  Ladd's  Estate,  94  Cal.,  670. 


IN  RE  TRINIDAD'S  WILL,  APR.   17,  1919.  895 

2.  Id.:  Trusts.     A  bequest  to  a  mother  and  child  or  children  creates 

a  trust  in  favor  of  the  latter. 

3.  Id.:  Equality  of  Beneficiaries.     And  each  takes  an  equal  share 

unless  the  contrary  intent  is  expressed. 


LOBINGIER,  /.  .' 

The  application  of  the  executrix  for  leave  to  make  dis- 
tribution and  for  her  own  discharge,  calls  for  a  construction 
of  the  first  clause  of  the  will  which,  as  translated  (the 
original  being  in  Tagalog),  reads  as  follows: 

"I,  Demetrio  R.  Trinidad,  do  hereby  declare  that  in  case  of  my  death 
my  beloved  wife  Emilia  Fernandez  of  Trinidad  be  solely  authorized 
to  have,  to  hold  and  to  dispose  of  my  personal  belongings  as  well  as 
my  funds  (superannuation)  in  the  Municipal  Council,  and  from 
which  sum  I  desire  that  she  (my  wife)  give  my  mother,  Mrs.  Sil- 
vestra  de  los  Reyes,  the  sum  of  $500  and  the  residue  from  my  said 
funds,  I  give  to  my  wife  and  my  son  Ludovino  Trinidad." 

The  evident  intent  of  the  testator  being  to  provide  for 
his  mother  and  son  as  well  as  for  his  wife,  the  rule  ^  is 
that  these  particular  expressions  prevail  over  the  general 
phraseology  in  the  first  part  of  the  clause  which  authorizes 
the  widow  "to  have,  to  hold  and  to  dispose  of,"  etc.  The 
provision  for  the  mother  is  clear  enough  but  the  bequest 
"to  my  wife  and  my  son"  raises  a  question  both  as  to  the 
capacity  and  as  to  the  share  of  each.  "A  devise  of  real 
estate  to  one  and  his  children  operated  at  common  law  to 
vest  in  the  devisees  a  joint  estate."  ^  Here  no  real  estate  is 
involved  and  the  rule  seems  to  be  that  under  such  phra- 
seology the  mother  takes  the  property  in  trust  for  herself 
and  the  children.^ 

As  to  the  share  which  each  takes  in  such  a  case,  the 
presumption  is  in  favor  of  equality.* 

'Cyc,  XL.,  1394   (22). 

■In  re  Estate  of  Utz,  43  Cal.,  200,  204,  citing  Gates  v.  Jackson,  2 
Strange,  1171. 

'Williams  v.  Williams,  16  Lea  (Tenn.),  164,  172;  Stratton  v. 
McKinnie  (Tenn.  Ch.),  62  S.  W.,  636,  638. 

*  Eberts  v.  Fisher,  44  Mich.,  551,  7  N.  W.,  211. 


896  I    EXTRATERRITORIAL    CASES. 

"The  rule  ordinarily  is  that,  where  a  conveyance  is  made  to  a 
woman  and  her  children  then  living,  they  take  equally."  ° 

A  similar  principle  is  applied  in  construing  bequests,  and 
where  there  are  but  two  beneficiaries  they  take  by  moities." 

The  petition  of  the  executrix  asks  that  the  share  of  the 
son  "be  invested  in  Shanghai  municipal  debentures  in  the 
name  of  the  Clerk  of  this  Court."  This  appears  to  be  a 
proper  execution  of  the  trust,  especially  in  the  absence  of 
a  legal  guardian  of  the  son  who  is  still  a  minor,  and  it  is 
accordingly  ordered  that  after  such  investment  the  executrix 
proceed  to  distribute  the  residue  of  the  estate  in  accordance 
with  the  terms  of  the  will  as  hereinbefore  construed.  Upon 
the  filing  of  proper  receipts  showing  such  distribution  the 
executrix  will  stand  discharged,  her  final  account  being 
hereby  approved.  It  appearing  that  notice  to  creditors 
has  been  duly  published  and  the  time  for  filing  claims  has 
expired,  all  further  claims  are  hereby  barred. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

hi  re  PETITION  FOR  Bankruptcy  of  the  American  Food 
Manufacturing  Company,  Ltd. 

[Cause  No.  763;  filed  April  30,  1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  BANKRUPTCY:    APPLICABILITY  OF  Fe2)ERAL  Law.     The  Bankruptcy 

Act  of  July  1,  1898,  is  (1)  a  general  "law  of  the  United  States," 
(2)  "necessary  to  execute  the  treaties"  with  China,  and  (3) 
"suitable"  for  that  purpose;  and  is  therefore  "extended  over 
all  American  citizens  in  China." 

2.  Id.  :  Jurisdiction.     The  law  being  thus  extended,  its  enforcement 

devolves  upon  the  existing  judicial  machinery,  which  is,  nat- 
urally, this  Court. 

'  Stratton  v.  McKinnie  (Tenn.  Ch.),  62  S.  W.,  638,  citing  Arrington 
V.  Roper,  3  Tenn.  Ch.,  572,  574;  Bunch  v.  Hardy,  3  Lea,  543,  548; 
Beecher  v.  Hicks,  7  Lea,  207,  209,  210;  Cannon  v.  Apperson,  14  Lea, 
553,  576. 

"Field  v.  Eaton,  16  N.  C,  283;  Hall  v.  Stephens,  65  Mo.,  670,  27 
Am.  Rep.,  302,  306. 


IN  RE  BANKRUPTCY  PETITION,  APR.  3  0,  1919.  897 

3,  Id.  :  Capacity  to  Petition.  Where  his  claim  exceeds  the  value  of 
his  securities,  a  secured  creditor  may  petition  to  institute  bank- 
ruptcy proceedings. 

Messrs.  Fleming,  Davies  &  Brijan,  by  Mr.  Bryan,  for  the 
demurrants. 

M.  L.  Heen,  Esq.,  contra. 

LOBINGIER, /.: 

To  petitions  under  the  Federal  Bankruptcy  Act  certain 
judgment  creditors  demur,  alleging  lack  of  jurisdiction  on 
the  part  of  this  Court  in  such  cases,  and  in  argument  counsel 
for  the  demurrants  questions  the  applicability  in  this  juris- 
diction of  said  bankruptcy  act  principally  on  the  ground 
that  it  enumerates  various  courts,  all  federal,  upon  which 
jurisdiction  in  bankruptcy  is  conferred  and  fails  to  mention 
this  Court.  As  the  present  Federal  Bankruptcy  Law  ^  was 
enacted  eight  years  before  the  statute  establishing  this 
Court,  the  latter  was  naturally  not  mentioned.  But  the 
test  of  jurisdiction  under  extraterritoriality  is  found  not 
merely  in  the  text  of  the  particular  act  in  question  but  in  its 
provisions  as  a  whole  as  interpreted  in  connection  with  the 
extending  act.  Nearly  all  American  statute  law  in  this  ju- 
risdiction is  applied  in  a  manner  and  over  a  territory  differ- 
ent from  what  was  in  the  legislative  mind  at  the  time  of 
its  enactment  and  the  question  always  arises  whether  it  is 
(1)  one  of  "the  laws  of  the  United  States,"  (2)  "necessary 
to  execute  the  treaties"  with  China,  and  (3)  "suitable  to 
carry  them  into  effect."  ^  If  it  meets  these  tests  it  is  treated 
as  "extended  over  all  citizens  of  the  United  States  in 
China,"  ^  regardless  of  the  original  purpose  or  intent  of 
its  enactment. 

Now  there  can  be  no  question  but  that  the  Federal  Bank- 
ruptcy Act  is  "a  law  of  the  United  States."  Counsel  for 
the  demurrants  referred  to  it  as  "a  special  act"  because  it 

'  Act  of  Congress  of  July  1,  1898,  Sess.  II,  30  U.  S.  Stats,  at  Large, 
Ch.  541,  p.  544. 

'  Act  of  Congress  of  August  11,  1848,  9  U.  S.  Stats,  at  Large,  Ch. 
150,  p.  276,  sec.  4;  Act  of  Congress  of  June  22,  1860,  12  U,  S.  Stats. 
at  Large,  Ch.  179,  p.  73,  sec.  4. 

*Id. 

14008    O.    W. 57 


898  I  EXTRATERRITORIAL  CASES. 

covers  a  particular  field  of  legislation;  but  in  that  sense 
practically  all  statutes  are  special.  In  territorial  scope  the 
act  was  as  broad  as  it  then  could  be  made  for  it  covered 
specifically  all  American  territory.  Moreover,  the  subject 
is  one  w^hich  is  expressly  reserved  to  Congress  for  it  "to 
establish  *  *  *  uniform  laws  *  *  *  thruout  the 
United  States,"  *  and  the  exercise  of  that  power  suspends 
all  insolvency  laws  enacted  by  the  states.^  It  would  seem 
difficult,  indeed,  to  find  a  better  example  of  a  general  "law 
of  the  United  States"  as  distinguished  from  a  special  one. 

Nor  would  it  seem  to  be  doubtful  that  the  extension  of 
such  a  law  to  this  jurisdiction  is  "necessary  to  execute  the 
treaties"  with  China,  the  first  of  which  required  our  govern- 
ment to  regulate 

"all  questions  in  regard  to  rights,  whether  of  property  or  person, 
arising  between  citizens  of  the  United  States  in  China  *  *  * 
and  all  controversies  occurring  in  China  between  citizens  of  the 
United   States  and  the  subjects  of  any  other  government." " 

Some  provisions  regarding  bankruptcy  would  certainly 
seem  to  be  "necessary"  for  the  regulation  of  such  rights 
and  the  adjustment  of  such  controversies.  Indeed,  this 
very  proceeding,  in  which  most  of  the  creditors  and  claim- 
ants are  Chinese,  demonstrates  the  necessity  of  such  a  law; 
for  could  the  United  States  Government  fulfill  its  treaty 
obligations  to  China  and  her  citizens  if  it  failed  to  provide 
for  such  an  emergency? 

Finally,  it  seems  quite  as  unquestionable  that  the  act  is  a 
"suitable"  one  for  few  pieces  of  American  legislation  have 
been  framed  with  greater  care  or  based  upon  longer  ex- 
perience. The  first  Federal  Bankruptcy  Law  '  was  enacted 
in  1800  and  repealed  **  in  1803.     The  second ""  was  enacted 


*  Federal  Constitution,  Art.  I,  sec.  8    (4). 

°  Sturges  V.  Crowninshield,  4  Wheat.  (U.  S.),  122,  4  L.  ed.,  529,  per 
Marshall,  C.  J. 

'  Art.  XXV,  ante,  p.  2. 

'  Act  of  Congress  of  April  4,  1800,  2  U.  S.  Stats,  at  Large,  Ch.  19, 
p.  19. 

'  Act  of  Congress  of  December  19,  1803,  2  U.  S.  Stats,  at  Large,  Ch. 
6,  p.  248. 

"  Act  of  Congress  of  August  19,  1841,  5  U.  S.  Stats,  at  Large,  Ch.  9, 
p.  440. 


IN  RE  BANKRUPTCY  PETITION,  APR.  30,  1919.  899 

in  1841  and  repealed  ^°  in  1843.  The  third  ^'  was  passed  in 
1867  and  repealed  ^-  so  as  to  take  effect  in  1878.  The 
present  law  has,  therefore,  been  in  force  nearly  twice  as 
long  as  any  of  its  predecessors.  It  has  been  supplemented 
and  strengthened  by  subsequent  legislation  and  by  elaborate 
Supreme  Court  rules  but  no  movement  for  its  repeal  has 
appeared  and  of  all  American  legislation  on  the  subject  it 
would  seem  to  have  met  the  test  of  suitability. 

The  law  being  thus  extended  to  China  its  enforcement 
must  be  left  to  the  judicial  machinery  on  the  ground  which 
will  naturally  be  this  Court.  The  fact  that  other  courts  are 
given  exclusive  jurisdiction  elsewhere  offers  no  impedi- 
ment, for  such  provisions  aie  merely  local  and  are  not  ex- 
tended. Thus  the  provisions  of  the  criminal  code  enacted 
for  Alaska  were  held  to  be  "within  the  meaning  of  the 
statute  conferring  jurisdiction  upon  the  United  States  Court 
for  China"  '^  altho  said  code  expressly  conferred  exclusive 
jurisdiction  upon  other  courts.  So  this  Court  has  exercised 
jurisdiction  in  divorce,  adoption  proceedings,  vagrancy,  and 
juvenile  offences,  applying  laws  which  were  originally  in- 
tended for,  and  restricted  to,  other  courts  but  which  were 
construed  as  having  been  extended  here  by  the  general 
statutes  above  cited  and,  being  extended,  were  required  to 
be  enforced  by  the  existing  judicial  machinery.  Of  course 
we  are  not  bound  by  all  the  procedural  provisions  of  the 
statute.  For  bankruptcy  was  one  of  the  subjects  touched 
upon  in  the  Court  Regulations  "  which  the  Judge  of  this 
Court  is  given  authority  "to  modify  and  supplement."  ^^ 
But  the  framework  of  the  remedy  is  made  available  by  the 
statute. 


'"  Act  of  Congress  of  March  3,  1843,  5  U.  S.  Stats,  at  Large,  Ch.  82, 
p.  614. 

"  Act  of  Congress  of  March  2,  1867,  14  U.  S.  Stats,  at  Large,  Ch. 
176,  p.  517. 

"^Act  of  Congress  of  June  7,  1878,  20  U.  S.  Stats,  at  Large,  Ch. 
160,  p.  99. 

''  Biddle  v.  United  States,  ante,  p.  126. 

"Sec.  55. 

"  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Ch. 
3934,  sec.  5. 


900  I  EXTRATERRITORIAL  CASES. 

Another  ground  of  demurrer  is  that  the  petitioner  "has 
not  the  legal  capacity  to  institute"  these  proceedings,  the 
basis  of  this  being  the  averment  that  "petitioner's  claim  is 
by  mortgage."     But  it  is  also  alleged  (par.  2)  that 

"Petitioner  is  one  having  provable  claim,  in  excess  of  any  security, 
to  the  sum  of  Five  Hundred  Dollars,  United   States  Currency." 

Now  the  Bankruptcy  Act  ^"  permits  a  secured  creditor 
to  petition  in  order  to  institute  such  proceedings  where,  and 
to  the  extent  that,  his  claim  "exceeds  the  value  of  such  se- 
curities," and  this  right  is  fully  recognized  in  the  authority  " 
cited  by  demurrants'  counsel. 

The  petition  being  sufficient  as  regards  the  objections 
urged,  the  demurrer  is 

OVERRULED. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
:  United  States  v.  Walter  G.  Wallace. 

[Cause  No.  776;  filed  June  3,  1919.] 

SYLLABUS. 

(By  the  Court.) 

1.  CONSPIRACY  need  not  succeed,  nor  even  be  shown  possible  of  con- 

summation, to  be  punishable. 

2.  Id.  :  Evidence  reviewed  and  found  sufficient  to  convict. 

3.  Id.  :  Id.  Failure  to  call  a  witness,  present  by  subpoena  at  a  party's 

request,  justifies  the  inference  that  the  testimony  would  be  ad- 
verse to  the  latter. 

4.  Id,  :  Declarations  of  one  co-conspirator  are  admissible  against  all. 

5.  Id.:  The  Penalty  may  be  more  severe  than  for  the  crime  to  com- 

mit which  the  conspiracy  was  formed. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Arthur  S.  Allan,  Esq.,  for  the  defense. 

LOBINGIER,  J.: 

The  information  herein  charges  that  the  accused  and  two 
others  (not  citizens  of  the  United  States) 

"  30  U.  S.  Stats,  at  Large,  Ch.  541,  sec.  56  b.  Cf.  In  re  Alexander, 
1  Lowell  (U.  S.),  470,  1  Fed.  Cas.,  351,  decided  under  the  Act  of 
1867  but  quite  as  applicable  under  the  present  Act. 

"  Emerine  v.  Tarault,  219  Fed.,  68. 


UNITED  STATES  V.  WALLACE,  JUNE  3,  1919.  901 

"did  conspire,  combine,  confederate  and  agree  together  between  and 
among  themselves  to  sell  about  thirty-two  pounds  of  opium  to  one, 
Sing  Chong,  a  citizen  of  the  Republic  of  China,  and  accepted  in 
payment  of  said  sale  of  opium,  monies,  jewelry  and  bonds  to  the 
approximate  value  of  One  Thousand  Dollars  Mexican  ($1,000  Mex.)  ; 
and  thereby  *  *  *  -was  and  is  guilty  of  the  crime  of  conspiring 
to  commit  an  offense  against  the  United  States." 

The  story  as  detailed  by  the  complaining  witness,  a  tailor, 
is  that  the  accused  came  to  his  store  to  order  clothes ;  that 
on  a  second  visit  he  broached  the  subject  of  selling  opium 
and  later  delivered  a  sample  stating  that  it  was  not  smuggled 
and  was  safe  to  buy ;  that  afterward  an  agreement  was 
reached,  which  was  consummated  at  defendant's  house,  for 
the  sale  of  thirty-two  pounds  of  opium  for  which  the  com- 
plaining witness  delivered  to  the  accused  $700  in  cash,  a 
Chinese  war  bond  for  $100  and  a  pair  of  bracelets  valued 
at  $200 ;  that  the  accused  thereupon  wrote  and  delivered  the 
following  memorandum  which  was  introduced  in  evidence: 

"Shanghai. 
Received  of  Mr.  Sing  Chung  dollars  one  thousand 
$1,000  on  account  of  which  is  due  for  deposit. 

Wallace. 
8-5-19."     (Ex.  B.) 

The  complaining  witness  testified  that  the  accused  then 
went  out,  ostensibly  to  get  the  opium,  but  failed  to  return 
and  never  did  deliver  it  nor  refund  more  than  a  small  por- 
tion of  the  money.  This  testimony  is  corroborated  in  part 
by  another  Chinese  and  his  wife  who  tell  of  having  loaned 
the  complaining  witness  money  to  purchase  opium,  as  he 
stated,  and  to  being  present  at  the  house  of  the  accused 
when  he  received  the  money. 

The  complaining  witness  further  states  that  one  Da  Rosa 
whom  the  information  names  as  co-conspirator  and  whose 
declarations  would  for  that  reason  be  admissible  against 
the  accused,^  was  at  defendant's  house  when  the  deal  was 
consummated  (a  statement  corroborated  by  one  of  the  other 
Chinese  witnesses)  ;  that  Da  Rosa  left  with  the  accused 
after  the  money  was  paid  and  that  later  Boggs,  the  other 
alleged  conspirator,  went  out  and  returned,  stating  that 

'  U.  S.  v.  Leonhardt  &  Terry,  ante,  p.  790;  U.  S.  v.  Cassidy,  67 
Fed.,  698,  703. 


902 


I  EXTRATERRITORIAL  CASES. 


the  accused  was  at  the  house  of  the  complaining  witness 
(which  was  found  not  to  be  the  case)  ;  that  all  three  of  the 
alleged  conspirators  were  seen  leaving  together  in  an 
automobile  and  that  Da  Rosa  told  complainant  that  he 
had  better  disappear  for  a  few  days  and  not  testify  or  he 
would  be  condemned;  also  that  defendant's  mother-in-law 
would  refund  the  balance  of  the  money.  The  portion  which 
was  returned  ($100)  was  acknowledged  (Ex.  2)  as  "re- 
ceived of"  the  latter  and  Da  Rosa  and  the  same  two 
executed  promissory  notes  (Ex.  D  &  E)  to  the  complaining 
witness  for  the  entire  amount. 

We  find  nothing  in  the  record  which  would  justify  us 
in  rejecting  the  testimony  of  these  witnesses.  The  asser- 
tion in  argument  that  they  are  opium  dealers  or  smokers 
is  denied  by  them  and  is  unsupported.  And  we  are  partic- 
ularly without  justification  for  disregarding  their  testimony 
in  view  of  the  failure  of  the  defense  to  attempt  the  slightest 
refutation.  We  pass  over  the  silence  of  the  accused,  for 
that  was  his  privilege,-  but  the  record  shows  that  the  de- 
fence requested  and  obtained  the  attendance  of  Da  Rosa 
as  a  witness  but  failed  to  have  him  testify  and  the  inference 
in  such  a  case  is  that  his  testimony  would  have  been  un- 
favorable ^   to   defendant   or   in   other   words   would   have 


'  People  V.  Courtney,  94  N.  Y.,  490;  U.  S.  v.  Navarro,  3  Philippine, 

143,  154. 

'Federal.  U.  S.  v.  Schindler,  10  Fed.,  547,  550;  U.  S.  v.  Leonhardt 
&  Terry,  cite,  p.  790. 

Maine.     State  v.  McAllister,  24  Me.,  139,  144. 

Michigan.     People  v.  McGarry,  136,  Mich.,  316;  99  N.  W.,  147. 

New  York.  People  v.  Hovey,  92  N.  Y.,  554;  Gordon  v.  People,  33 
N.  Y.,  501,  508;  People  v.  Dyle,  21  N.  Y.,  578. 

Philippines.  U.  S.  v.  Kosel,  24  Philippine,  594,  606;  Sy  Joe  Lieng 
V.  Sy  Quia,  16  Philippine,  137,  161. 

Vermont.     State  v.  Ward,  61  Vt.,  153;  17  Atl.,  483,  490. 

"A  failure  to  produce  proof,  when  in  the  power  of  the  party,  is 
recognized  even  in  the  criminal  cases  as  proper  to  be  considered." 
Seward  v.  Garlin,  33  Vt.,  583,  592. 

Virginia.  Sutton  v.  Com.,  85  Va.,  128;  7  S.  E.,  323,  where  the 
Prosecuting  Attorney  was  prohibited  by  statute  from  commenting  on 
defendant's  failui'e  to  testify. 


UNITED  STATES  V.  WALLACE,  JUNE  3,  1919.  903 

corroborated  the  complainant  whose  claims  are  correspond- 
ingly strengthened. 

The  evidence  must,  therefore,  be  deemed  sufficient  to 
show  the  purpose  of  selling  opium  in  China,  which  is  itself 
a  crime,^  and  a  conspiracy  to  that  end  in  which  Da  Rosa, 
by  reason  of  his  active  connection,  shared.  It  was  not 
necessary  to  show  that  the  conspiracy  succeeded  ^  nor  even 
that  its  consummation  was  possible  °  and  we  need  not,  there- 
fore, stop  to  consider  whether  the  accused  ever  actually 
had  opium  to  sell.  All  that  was  required  was  to  prove 
that  "two  or  more  persons"  did  "conspire  *  *  *  to 
commit  any  offense  against  the  United  States"  and  that  "one 
or  more  of  such"  did  "any  act  to  effect  the  object  of  the 
conspiracy."  ^  That  much,  it  seems  clear  from  the  whole 
case,  has  been  proven  and  we  must  accordingly  find  the 
accused  guilty  as  charged. 

The  penalty  for  selling  opium  is  a  fine  only — the  inad- 
equacy of  which  we  have  had  occasion  to  comment  on 
before.®  But  the  penalty  for  conspiracy  may  be  both  fine 
and  imprisonment,^  and  their  imposition,  tho  more  severe 
than  the  punishment  for  the  crime  itself,  has  been  upheld 
by  the  Supreme  Court.^" 

'24  U.  S.  Stats,  at  Large,  409,  Ch.  210;  Suppl.  U.  S.  Rev.  Stats., 
Vol.  I,  Ch.  210. 

=^  Williamson  v.  U.  S.,  207  U.  S.,  425,  52  L.  ed.,  278;  Curley  v.  U.  S., 
130  Fed.,  1;  U.  S.  v.  Green,  115  Fed.,  843. 

"The  law  in  its  object  is  preventive;  by  inflicting  the  penalty  on 
the  determination  to  commit  the  crime."  U.  S.  v.  Cole,  5  McLean, 
513,  25  Fed.  Cas.,  494. 

*  U.  S.  v.  Stamatapoulos,  164  Fed.,  524. 

'  Federal  Penal   Code,  sec.   37. 

'Ante,  pp.  522-524. 

"  Federal  Penal  Code,  sec.  37. 

'"Clune  V.  U.  S.,  159  U.  S.,  590,  40  L.  ed.,  269,  where  the  court, 
per  Brewer,  J.,  said: 

"The  language  of  the  sections  is  plain  and  not  open  to  doubt.  A 
conspiracy  to  commit  an  offense  is  denounced  as  itself  a  separate 
offense,  and  the  punishment  therefor  fixed  by  the  statute,  and  we 
know  of  no  lack  of  power  in  Congress  to  thus  deal  with  a  conspiracy. 
Whatever  may  be  thought  of  the  wisdom  or  propriety  of  a  statute 
making  a  conspiracy  to  do  an  act  punishable  mere  severely  than  the 
doing  of  the  act  itself,  it  is  a  matter  to  be  considered  solely  by  the  leg- 
islative body;"  citing  Calan  v.  Wilson,  127  U.  S.,  540,  32  L.  ed.,  223. 


904  I  EXTRATERRITORIAL  CASES. 

We  are  of  the  opinion  that  the  gravity  of  the  offense 
merits  a  prison  sentence  but  in  view  of  the  defendant's 
youth  and  the  District  Attorney's  recommendation  of  clem- 
ency, we  shall  not  make  it  a  long  one.  The  accused  is 
sentenced  to  six  months  of  imprisonment  to  be  served  in 
Bilibid  Prison,  Manila,  territory  of  the  Philippines,  and 
to  pay  the  costs  of  this  prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

VERA  Meier  and  Olga  Kaltzoff,  Plaintiffs,  v.  Arkell  & 
Douglas,  Inc.,  Defendant. 

[Cause  No.  774;  filed  June  12,   1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRACTS:  DECLARATIONS  by  parties  to  a  written  instrument  prior 

to   its   execution    cannot   ordinarily   be   considered    to    vary    its 
terms. 

2.  Id.  :   Failure  to  Read  a  written  instrument  before  signing  is  or- 

dinarily no  ground  for  avoiding  its  tei'ms,  and  this  case  is  not 
brought  within  the  exceptions. 

3.  Id.  :   Evidence  of  Fraud  in  the  execution  of  such  an  instrument 

"must  be  clear,  unequivocal  and  convincing;"  no  such  evidence 
found. 

4.  Id.:   Negligence  in  performing  a  contract  is  not  shown  where  the 

party  complained  of  acts  within   its  provisions. 

M.  L.  Heen,  Esq.,  for  plaintiffs. 

Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Davies,  for  de- 
fendant. 

Lobingier,  J.: 

This  is  an  action  for  $3,000  damages  alleged  to  have  been 
caused  plaintiffs,  who  are  local  milliners,  by  their  execution 
of  an  instrument  (Ex.  2)  dated  January  22,  1919,  by  which 
they  placed  with  defendant,  described  in  the  same  docu- 
ment as  ''shipping  and  commission  merchants,"  an  order  for 


MEIER  ET  AL.  V.  ARKELL  &  DOUGLAS,  JUNE  12,  1919.    905 

"50  only  Ladies'  Trimmed  Hats  (for  Summer) — -no  two  alike. — 
From  about  G.  $8  to  about  G.  $12  each  f.  o.  b.  factory.  To  be  pur- 
chased from  a  reputable  supplier.  To  be  cabled  for  at  buyer's  ex- 
pense. Ship  as  soon  as  possible.  Subject  to  obtaining  license. 
Indentor  undertakes  to  accept  draft  immediately  upon  presentation. 
A.  &  D.  not  responsible  for  selection  of  styles,  etc.,  and  in  case  of  late 
arrival  nor  for  condition  on  arrival.     Buying  commission  5%." 

The  complaint  alleges  a  prior  oral  agreement  containing 
most  of  the  above  terms  but  also  providing  that  the  pur- 
chase should  be  made — 

"in  the  City  of  New  York  from  a  certain  firm  of  milliners  ad- 
vertised in  one  of  the  issues  of  the  'Vogue,'  a  periodical  published 
in  America,  the  name  of  which  firm  having  been  pointed  out  to  the 
plaintiffs  by  said  J.  Ezra  but  which  they  are  unable  with  certainty 
to  recall  or  ascertain  at  the  pi-esent  time." 

In  support  of  this  averment  one  of  the  plaintiffs  testifies 
that  said  Ezra,  defendant's  salesman,  showed  her  a  copy  of 
Vogue  containing  an  advertisement  of  "Rawak"  hats  and 
also  one  by  Rosenblum  &  Co.,  styled  "Cupid"  hats,  which 
latter  she  says  Ezra  agreed  to  order.  This  advertisement 
appears  to  have  been  rediscovered  after  the  filing  of  the 
complaint  and  it  purports  to  be  part  of  the  "fall  advertising 
campaign"  of  Rosenblum  &  Co.,  whereas  it  is  agreed  by 
both  parties  that  the  order  in  question  was  for  summer 
hats  only. 

On  the  other  hand  her  co-plaintiff",  who  states  that  she 
was  present  at  the  negotiations,  testifies  that  she  remembers 
nothing  of  Rosenblum  &  Co.,  and  heard  no  mention  of 
"Cupid"  hats  tho  she  says  that  Ezra  stated  that  he  could 
purchase  from  a  good  firm  advertising  in  Vogue.  Ezra 
himself  testifies  that  he  had  never  heard  of  Rosenblum  & 
Co.,  nor  of  "Cupid"  hats  nor  seen  the  advertisement  (Ex.  B) 
which  the  fiist  plaintiff  claims  he  showed  her;  but  says 
that  he  showed  instead  Rawak's  advertisement  with  the 
statement  that  he  could  not  order  according  to  it  because 
another  local  house  had  the  exclusive  agency  but  would 
order  from  a  reputable  dealer  other  than  Rawak. 

The  burden  rests  upon  plaintiffs  to  establish  the  material 
averments  of  their  complaint  by  a  preponderance  of  the 
evidence  and,  in  the  state  of  the  testimony  above  shown, 


906  I  EXTRATERRITORIAL  CASES. 

in  which  plaintiffs  themselves  do  not  agree  and  in  reference 
to  which  their  interest  is  certainly  as  great  as  defendant's 
agent,  we  could  hardly  find  that  this  burden  has  been  met  as 
regards  the  averment  above  quoted.  It  is  entirely  possible 
that  the  parties  misunderstood  each  other,  for  they  were 
negotiating  in  a  language  (English)  which  is  the  native 
tongue  of  none  of  them  but  in  which  plaintiffs  appear  to  be 
about  as  proficient  as  defendant's  agent.  Of  couise,  how- 
ever, no  agreement  could  arise  from  such  misunderstand- 
ings and  it  seems  more  than  probable  that  all  the  partici- 
pants understood  that  their  negotiations  were  merely  pre- 
liminary to  a  written  contract;  for  plaintiffs  themselves 
offer  in  evidence  a  number  of  such  instruments  (Ex.  N) 
evidencing  prior  transactions  between  the  plaintiffs  and 
defendant  and  there  is  no  claim  of  any  transaction  based 
upon  oral  agreement  alone.  Indeed  this  case  well  illustrates 
the  wisdom  of  the  parol  evidence  rule  by  which  all  prelim- 
inary negotiations  are  considered  as  merged  in  the  written 
instrument. 

"Oral  declai'ations  of  the  parties  made  at  or  before  the  time  of 
the  execution  of  the  instrument  are  not  admissible  for  the  purpose  of 
showing  an  intention  or  purpose  not  therein  expressed."  * 

"In  order  to  let  in  evidence  of  a  collateral  agreement  between  the 
parties,  such  agreement  must  be  consistent  with  the  terms  of  the 
writing."  ^ 

For  here  are  three  different  parties,  each  claiming  to 
have  participated  in  the  negotiations  and  each  having  a 
different  version  thereof.  Naturally  there  was  no  meeting 
of  minds  and  the  only  safe  guide  is  the  document  later 
signed  by  each  party.  To  allow  plaintiffs  to  repudiate  that, 
and  then  to  hold  defendant  responsible  for  the  alleged  prior 
statements  of  a  mere  salesman,  w^ould  be  to  impose  a  rule 
under  which  no  prudent  concern  could  afford  to  operate. 

II. 

It  is  claimed,  however,  that  plaintiffs  were  fraudulently 
induced  to  execute  the  written  instrument  because  their 
attention  was  not  called  to  the  following  clauses: 


I 


'  Cyc,  XVII,  669.  *  Id.,  714. 


MEIER  ET  AL.  V.  ARKELL  &  DOUGLAS,  JUNE  12,  1919.    907 

"To  be  purchased  from  a  reputable  supplier;  *  *  A.  &  D,  (de- 
fendant) not  responsible  for  selection  of  styles," 

which,  they  allege,  they  "omitted  to  read  *  *  *  be- 
cause they  were  unable  to  do  so  being  insufficiently  qualified 
to  read  or  write  the  English  language."  The  rule  of  law 
in  such  cases  has  been  stated  by  a  great  Federal  Judge ' 
as  follows : 

"A  written  contract  is  the  highest  evidence  of  the  terms  of  an 
agreement  between  the  parties  to  it,  and  it  is  the  duty  of  every  con- 
tracting party  to  learn  and  know  its  contents  before  he  signs  and 
delivers  it.  He  owes  this  duty  to  the  other  party  to  the  contract, 
because  the  latter  may,  and  probably  will,  pay  his  money  and  shape 
his  action  in  reliance  upon  the  agreement.  He  owes  it  to  the  public, 
which,  as  a  matter  of  public  policy,  treats  the  written  contract  as 
a  conclusive  answer  to  the  question,  what  was  the  agreement?  If 
one  can  read  his  contract,  his  failure  to  do  so  is  such  gross  negligence 
that  it  will  estop  him  from  denying  it,  unless  he  has  been  dissuaded 
from  reading  it  by  some  trick  or  artifice  practiced  by  the  opposite 
party.  If  he  cannot  read  it,  it  is  as  much  his  duty  to  procure  some 
reliable  person  to  read  and  explain  it  to  him,  before  he  signs  it,  as  it 
would  be  to  read  it  before  he  signed  it  if  he  were  able  to  do  so;  and 
his  failure  to  obtain  a  reading  and  explanation  of  it  is  such  gi-oss 
negligence  as  will  estop  him  from  avoiding  it  on  the  ground  that  he 
was  ignorant  of  its  contents."  * 

The  plaintiff  who  signed  this  instrument  stated  that 
'she  did  so  the  day  it  was  handed  her  by  Ezra  and  that 

"I  take  the  pen  to  sign  and  says  'is  that  all  right'  and  he  says 
'that  all  right.'" 

Ezra's  attention  was  not  called  to  this  particular  state- 
ment upon  either  his  direct  or  cross-examination.     But  he 

'  Sanborn,  C.  J.,  in  Chicago  etc.  R.  Co.  v.  Belliwith,  83  Fed.,  437. 

*  England.     Lewis  v.  R.  Co.,  5  H.  &  N.,  867. 
.  Federal.     Upton  v.  Tribilcock,  91  U.  S.  45,  23  L.  ed.,  203;  Muller 
V.  Kelly,  116  Fed.,  545;  Vickers  v.  R.  Co.,  71  Fed.,  139. 

Indiana.     Stewart  v.  R.  Co.,  141  Ind.,  55,  40  N.  E.  6. 

Massachusetts.     Rice  v.  Mfg.  Co.,  2  Cush,,  80. 

Nevada.     Gage  v.  Phillips,  21  Nev.,  150,  26  Pac,  60. 

Netv  .Jersey.     Fivey  v.  R.  Co.,  67  N.  J.  L.,  627,  52  Atl.,  472. 

Pennsylvania.  Burrill  v.  Saving  Bank,  92  Pa.  St.,  134,  37  Am. 
Rep.,   669. 

And  see  other  cases  cited  in  Corpus  Juris,  XIII,  372,  note  39. 

The  New  York  rule  appears  to  be  different.  Wilcox  v.  Tel.  Co., 
176  N.  Y.,  115,  68  N.  E.,  153. 


908  I  EXTRATERRITORIAL  CASES. 

is  very  positive  to  the  effect  that  while  the  instrument  was 
left  with  plaintiff  on  January  22,  she  retained  it  for  three 
days  before  signing.  He  is  corroborated  by  defendant's 
manager  who  says  that  the  hats  were  cabled  for  on  January 
25  as  soon  as  the  instrument  was  received  from  plaintiff. 
Moreover,  Ezra's  alleged  reply,  as  quoted  by  her,  contained 
no  misstatement  of  the  instrument's  terms  which  is  ordi- 
narily necessary  to  constitute  fraud.^  Indeed,  the  provision 
most  complained  of  (exempting  defendant  from  respon- 
sibility "for  selection  of  styles")  was  substantially  similar 
to  a  clause  in  another  contract  (Ex.  3)  between  the  parties 
about  six  months  earlier  and  seems  to  be  a  reasonable  one 
under  the  circumstances. 

It  is  true,  as  counsel  contends,  that  a  fiducial  relation 
between  the  parties  subjects  a  transaction  to  closer  scru- 
tiny ;  but  no  authority  is  cited  **  to  the  effect  that  such  rela- 
tion exists  between  the  salesman  and  the  customer  of  a 

"  Corpus  Juris,  XIII,  383. 

In  the  following  cases  relied  upon  by  plaintiff's  counsel  there  was 
a  positive  misstatement: 

Beck  etc.  Co.  v.  Houppert,  104  Ala.,  503,  16  So.,  522;  Central  R. 
Co.  V.  Goodwin,  120  Ga.,  83,  47  S.  E.,  641;  Western  Mfg-.  Co.  v.  Cotton, 
126  Ky.,  749,  10  S.  W.,  758;  Gibbs  v.  Linabury,  22  Mich.,  479,  7  Am. 
Rep.,  675;  McGinn  v.  Tobey,  62  Mich.,  252,  28  N.  W.,  818;  Briggs  v. 
Ewart,  51  Mo.,  245,  11  Am.  Rep.,  445;  Griffin  v.  Lumber  Co.,  140 
N.  C,  514,  53  S.  E.,  307;  Mt.  Hope  Nurseries  v.  Jackson,  36  Okla., 
273,  128  Pac,  250;  Schuylkill  County  v.  Copley,  67  Pa.  St.,  386,  5 
Am.  Rep.,  441;  Stacy  v.  Ross,  27  Tex.,  3,  84  Am.  Dec,  604;  Bjorklund 
V.  Electric  Co.,  35  Wash.,  439y  77  Pac,  727. 

In  the  following  cases,  also  cited  by  plaintiff's  counsel,  the  decision 
was  adverse  to  his  contention :  Fari'ar  v.  Churchill,  135  U.  S.,  609, 
34  L.  ed.,  246,  10  S.  Ct.,  771;  Mills  v.  Lee,  6  T.  B.  Mon.  (Ky.),  91,  17 
Am.  Dec,  118;  Gage  v.  Phillips,  21  Nev.,  150,  26  Pac,  60;  Fivey  v.  R. 
Co.,  67  N.  J.  L.,  627,  52  Atl.,  472. 

No  authority  has  been  cited  where  a  mere  general  statement,  as 
that  the  instrument  was  "all  right,"  was  held  to  relieve  a  party  from 
the  obligation  to  read  it. 

"  The  cases  cited  by  counsel  on  this  point  are  De  Ruitter  v.  De 
Ruitter,  28  Ind.  App.,  9,  62  N.  E.,  100,  where  the  parties  were  spouses, 
and  Smith  v.  Smith,  134  N.  Y.,  62,  31  N.  E.,  258,  where  they  were 
aunt  and  nephew.  In  McGinn  v.  Tobey,  62  Mich.,  252,  28  N.  W.,  218, 
the  relation  was  one  of  attorney  and  client. 


MEIER  ET  AL.  V.  ARKELL  &  DOUGLAS,  JUNE  12,  1919.    909 

commission  merchant,  and  they  appear  to  have  dealt  in 
this  as  in  many  previous  instances. 

It  is  also  true  that  the  law  grants  a  special  indulgence 
to  illiterates ; '  but  we  cannot  regard  the  plaintiff  who  signed 
the  contract  as  in  that  class.  In  reply  to  the  question, 
Can  you  read  English  ?  she  testified : 

"Very  few  words;  I  can  read  but  I  do  not  understand;  small  words 
I  understand,  big  words  I  do  not  understand." 

Whatever  else  may  be  inferred  from  this  it  does  not 
show  the  mental  state  which  illiteracy  connotes.  This 
plaintiff  is  evidently  an  alert,  intelligent  business  woman 
and  while  she  has  not  mastered  English  she  testified  in 
that  language  and  a  comparison  of  her  testimony  with 
that  of  defendant's  agent  shows  no  advantage  to  the  latter. 
Moreover  it  is  not  disputed  that  plaintiffs  had  at  their 
disposal  the  services  of  their  witness  Mackenzie  who  pre- 
pared bills,  conducted  their  correspondence  and  attended  to 
advertising  for  them  and  who  seems  to  have  taken  a  special 
interest  in  this  transaction.  That  they  did  not  consult  him 
about  the  contract  when  they  might  have  done  so  is  cer- 
tainly not  the  fault  of  defendant. 

Evidence  of  fraud  in  the  execution  of  a  written  instru- 
ment ''must  be  clear,  unequivocal  and  convincing"  ^  and  we 
find  no  such  evidence  here.  Nor  is  there  any  suggestion 
of  a  motive  for  the  fraud  alleged.  As  a  mere  commission 
merchant  defendant's  profit  was  the  same  regardless  of  the 
house  with  which  it  placed  the  order  and  there  is  nothing 
to  indicate  that  it  had  any  reason  for  preferring  one  house 
over  another.  On  the  other  hand  it  was  financially  in- 
terested in  satisfying  its  local  customers  and  thus  extending 
its  trade. 

'Selden  v.  Myers,  20  How.  (U.  S.)  506,  15  L.  ed.,  976;  Schuylkill 
County  V.  Copley,  67  Pa.  St.  386,  5  Am,  Rep.  441;  Stacy  v,  Ross,  27 
Tex.  3,  84  Am.  Dec.  604  and  other  cases  cited  in  Corpus  Juris,  XIII, 
373  note  42. 

'  U.  S.  V.  Maxwell  Land  Grant  Co.,  121  U.  S.  325,  30  L.  ed.,  949, 
7  Sup.  Ct.  1015;  Ins.  Co.  v.  Nelson,  103  U.  S.  544,  26  L.  ed.,  436; 
Chicago  etc.  R.  Co.  v.  Belliwith,  83  Fed.,  437. 


910  I  EXTRATERRITORIAL  CASES. 

III. 

A  second  count  of  the  complaint  alleges — 

"In  purchasing  the  said  hats  for  plaintiffs,  defendant  corporation 
did  not  use  reasonable  care,  skill  and  diligence  which  they  were  bound 
to  observe,  and  by  reason  of  such  negligence  plaintiffs  have  been 
deprived  of  the  large  profits  they  would  otherwise  have  made,'"  etc. 

Plaintiff's  contention  that  defendant,  as  a  commission 
merchant,  was,  in  a  sense,  their  agent  and,  as  such,  liable 
for  negiig'ence  ■'  may  be  conceded.  But  as  the  agency  was 
limited  by  the  terms  of  a  written  contract  we  doubt  if 
negligence  would  arise  so  long  as  defendant  kept  within 
those  terms.  We  have  been  cited  to  no  authority  and  have 
found  none  to  the  effect  that  one  party,  while  not  electing  to 
disaffirm  a  contract,  may  hold  the  other  liable  for  acts  which 
the  contract  permitted. 

Of  the  material  provisions  of  this  contract  it  is  conceded 
that  plaintiff's  actually  received,  and  still  retain,  "50  ladies' 
trimmed  hats."  One  of  the  plaintiffs  indeed  says  that 
few  of  them  are  "summer  hats"  but  she  is  the  same  witness 
who  claims  to  have  ordered  according  to  an  advertisement 
of  fall  hats.  Plaintiffs'  expert  witness,  Mrs.  Paolinyi,  tes- 
tifies that  "all  are  summer  hats." 

As  showing  non-compliance  with  the  requirement  that 
there  were  to  be  "no  two  alike"  plaintiffs  produce  three 
of  the  fifty  which  appear  to  be  similar  in  shape;  but  each 
differs  fiom  the  others  in  color  and,  to  some  extent,  in 
trimming,  so  that  it  could  hardly  be  said  that  they  are 
"alike."  The  requirement  was  not  that  they  should  be 
unlike  in  all  respects. 

The  price  is  specified  at  "from  about  G.  $8  to  about  G.  $12 
each  f.  o.  b.  factory"  which  means,  of  course,  the  price  in 
the  United  States.  There  is  no  testimony  that  better  hats 
could  have  been  bought  there  for  the  prices  named  while  an 
apparently  disinterested  and  expert  witness  estimates  them 
as  worth  from  $9  to  $12.  It  is  true  that  one  of  plaintiffs' 
witnesses  places  them  very  much  lower  and  that  two  hats 
are  produced  of  alleged  better  quality  which  are  stated  to 


Citing  Am.  &  Eng.  Ency.  of  Law   (2nd  ed.),  I,  1063. 


MEIER  ET  AL.  V.  ARKELL  &  DOUGLAS,  JUNE  12,  1919.    911 

have  been  purchased  here  for  about  half  the  prices  named, 
but  the  question  remains,  What  was  the  price  in  America? 
And  in  view  of  the  notoriously  high  prices  prevailing  there 
at  the  present  time  we  certainly  would  not  be  justified  in 
presuming,  without  evidence,  that  the  hats  in  question  were 
purchased  for  less  than  the  prices  fixed  in  the  contracts. 

The  burden  was  upon  plaintiffs  to  show  that  the  house 
which  supplied  the  hats  (Cochran  &  Co.)  was  not  "a  re- 
putable supplier"  as  the  contract  requires,  and  no  such 
evidence  was  produced.  So  far  as  appears,  it  was  equally 
such  with  Rosenblum  &  Co.  whom  one  of  the  plaintiffs,  as 
we  have  seen,  claims  was  the  house  which  she  understood 
the  hats  were  to  be  ordered  from ;  nor  is  there  any  evidence 
that  the  latter  would  have  supplied  better  hats  at  those 
prices. 

The  complaint  alleges  that  the  hats  were  found  to  be 
"practically  unsalable ;"  but  the  plaintiff  who  testifies  on 
that  point  also  says  that  she  did  not  try  to  sell  them.  She 
refers  indeed  to  criticism  on  the  part  of  some  of  her  cus- 
tomers but  none  of  the  latter  were  called  as  witnesses. 
Ezra's  admission  that  he  stated,  when  plaintiffs  were  com- 
plaining, that  the  hats  were  "perhaps  not  good"  must  be 
taken  in  connection  with  his  further  statement  that  he 
knows  nothing  about  hats.  Plaintiffs'  expert  who  stated 
that  she  had  not  seen  the  hats  previous  to  her  appearance 
in  Court  testified,  without  a  detailed  examination,  that  they 
were,  as  the  interpreter  rendered  it,  "rotten ;"  but  on  the 
other  hand  defendant's  expert  already  mentioned  and  who 
seems  to  have  had  a  much  wider  and  longer  experience, 
and  who  had  examined  the  hats  previously,  testifies  that 
she  "thought  they  were  very  nice  hats  and  wanted  to  buy 
them."  Where  the  experts  differ  so  radically  upon  a  ques- 
tion so  remote  from  judicial  experience  it  would  probably 
be  hazardous  for  the  Court  to  express  an  opinion  other  than 
that,  while  the  hats  may  not  be  of  the  best  quality,  the 
averment  that  they  are  "practically  unsalable"  is  not  es- 
tablished. 

So  of  the  whole  case  we  are  unable  to  find  that  the 
material  averments  of  the  complaint  are  sustained  by  a 


912  I  EXTRATERRITORIAL  CASES. 

preponderance  of  the  evidence  and  it  is  accordingly  con- 
sidered and  adjudged  that  plaintiffs  take  nothing  thereby 
and  that  defendant  recover  its  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
hi  re  GEORGE  A.  Derby's  Will. 

[Cause  No.  609;  filed  June  25,  1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  wriLS.     Validity   of   holographic   wills    in    this    jurisdiction    reaf- 

firmed. 

2.  Id.  :  The  Appointment  of  an  Administrator  is  not  rendered  void 

by  the  subsequent  discovery  of  a  will ;  but  the  letters  of  adminis- 
tration granted  thereunder  should  be  revoked. 

3.  Id.  :   Id.  :   Confirmation  of  the  acts,  otherwise  regular,  performed 

by  the  administrator  under  such  letters,  is  proper  and  advisable. 

C.  P.  HolcoTTib,  Esq.,  amicus  curiae,  for  the  petitioners. 
No  appearance  contra. 

LOBINGIER,  J.: 

A  petition  is  here  presented  for  the  probate  of  an  instru- 
ment purpoiting  to  be  the  last  will  and  testament  "drawn 
up  entirely  in  my  own  handwriting"  of  the  late  George  A. 
Derby,  deceased.  Shortly  after  his  death  a  special  adminis- 
trator was  appointed  and  upon  his  decease  a  regular  ad- 
ministrator, no  will  having  been  found.  The  instrument 
now  presented,  and  duly  accounted  for,  is  amply  shown 
to  have  been  written,  as  it  purports  to  be,  by  the  decedent 
himself  and  mailed  only  a  few  days  before  his  death  to  the 
one  subsequently  named  special  administrator.  Testa- 
mentary capacity  at  the  time  on  decedent's  part  is  also 
established.  There  are  no  witnesses  to  the  instrument  but 
under  the  previous  decisions  of  this  Court  ^  an  holographic 
will  is  valid  tho  unattested  and  tho  it  names  no  executor. 
There  is  consequently  no  reason  why  this  instrument  should 
not  be  admitted  to  probate. 

-In  re  Allen's  Will,  ayite,  p.  92.  In  re  Lucy  Lucker's  Will,  ante, 
p.  626;  In  re  John  Kavanaugh's  Will,  ante,  p.  842;  In  re  Amy  Bell's 
Will,  ante,  p.  893;  In  re  Alberta  C.  K.  Fitch's  Will,  ante,  p.  869. 


IN  RE  DERBY'S  WILL,  JUNE  2.5,  1919.  913 

It  remains  to  consider,  however,  the  effect  of  such  ad- 
mission upon  the  appointment  and  acts  of  the  previous 
administrators.  There  appear  to  be  some  old  English  de- 
cisions -  to  the  effect  that  the  appointment  of  an  adminis- 
trator, when  there  was  in  fact  a  will,  was  void.  Under  the 
almost  if  not  quite  universal  American  doctrine,  however, 
such  an  appointment  is  at  most  only  voidable." 

Moreover,  while  the  letters  of  administration  granted 
under  such  circumstances  are  usually  revoked  the  acts  there- 
under, otherwise  regular,  of  the  administrator  are  at  the 
same  time  upheld  and  confirmed  ^  without  requiring  the 
steps  taken  by  him  in  the  course  of  the  administration 
to  be  repeated.  In  the  language  of  one  of  the  decisions 
"the  executor  will  have  power  only  over  so  much  of  the 
estate  as  remains  unadministered."  ^ 

In  the  case  at  bar  the  administration  appears  to  have 
reached  a  stage  where  at  least  a  partial  distribution  of  the 
assets  is  advisable.  The  required  notice  to  creditors  has 
been  duly  published  and  all  just  claims  presented  have  been 
paid.  It  would  be  wasteful  and  absurd  to  require  these 
processes  to  be  repeated.  Besides,  the  will  names  no  exec- 
utor in  terms;  it  merely  asks  a  certain  organization,   of 


'Abraham  v.  Cunningham,  3  Keb.,  725,  S.  C,  2  Mod.,  146;  Grays- 
brook  V.   Fox,   1   Plowd.,  275. 

^  Alabamct.  "The  tendency  of  modern  decisions,  however,  upon  this 
as  upon  many  other  questions,  is  not  to  pronounce  judicial  acts  void 
unless  forced  thereto  by  some  stern  rule  of  law  or  of  public  policy. 
The  consequences  of  pronouncing  acts  voidable  rather  than  void  com- 
mend themselves  by  such  a  healthy  conservatism  that  courts  should 
hesitate  before  declaring  void  what  has  passed  judicial  sanction." 
Broughton  v.  Bradley,  34  Ala.,  694,  73  Am.  Dec,  474.  See  also  Sands 
v.  Hickey,  135  Ala.,  322,  33  So.,  827;  Floyd  v.  Clayton,  67  Ala.,  266. 

Louisiana.     Dwight  v.  Simon,  4  La.  Ann.,  490.  493. 

Maryland.  Dalrymple  v.  Gamble,  66  Md.,  298,  7  Atl.,  683,  8  Atl., 
468. 

Mississippi.     Ragland  v.  Green,  14   Sm.  &  Mar.,  194. 

New   Hampshire.     Kittredge    v.    Folsom,    8    N.    H.,    98. 

Pennsylvania.  Patton's  Appeal,  31  Pa.  St.,  465.  See  also  Cyc, 
XVIII,    147,   note    60. 

'Kittredge  v.  Folsom,  8  N.  H.,  498;  Ragland  v.  Green,  14  Sm.  & 
Mar.  (Miss.),  194;  Dalrymple  v.  Gamble,  66  Md.,  298,  7  Atl.,  683,  8 
Atl.,    468. 

'Patton's  Appeal,   31    Pa.    St.,   465, 

14008    O.    W. 58 


914  I    EXTRATERRITORIAL    CASES. 

which  the  deceased  was  a  member,  to  name  one  who  "shall 
be  acceptable  to  the  United  States  Court  for  China"  and 
the  representatives  of  said  organization  have  named  the 
present  administrator.  In  such  cases  it  is  incumbent  on 
the  court  to  appoint  an  administrator  cum  testamento  an- 

It  is  accordingly  considered  and  decreed: 

1.  That  the  instrument  (Ex.  "A"),  which  the  evidence  shows  to 
have  been  written  by  the  deceased,  be  admitted  to  probate  as  his  last 
will  and  testament; 

2.  That  the  letters  of  administration  heretofore  granted  upon  the 
estate  of  said  decedent  be  and  the  same  are  hereby  revoked,  but  that 
all  acts  performed  thereunder  by  the  administrator  which  would 
otherwise  have  been  regular  be  and  the  same  are  hereby  confirmed; 

3.  That  letters  of  administration  cum  testamento  annexo  issue  to 
the  same  party  who  was  administrator  upon  his  taking  the  oath  and 
executing  a  bond  as  required  by  law; 

4.  That  all  further  claims  against  the  said  estate  be  and  the  same 
are  hereby  barred; 

5.  That  the  administrator  cii7n  testamento  annexo  proceed  to  dis- 
tribute as  far  as  practicable  the  assets  of  said  estate  in  accordance 
with  the  terms  of  said  will,  taking  and  filing  with  the  Clerk  of  this 
Court  proper  re  eipts  from  the  beneficiaries  if  of  lawful  age  and 
otherwise  from  their  guardians. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  William  Dommer. 

[Cause  No.  796;  filed  July  2,  1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  COURTS.     Jurisdiction.     This  Court  has  jurisdiction  over  offences 

committed  on  American  ships  on  the  high  seas. 
1.  ASSAULT.     Justification.     By  the  weight  of  authority,  the  use  of 

insulting  or  opprobrious  words  will  not  justify  an  assault. 
3.  Id.  :    Id.  :    Mitigation.     But    such    language    must   be   taken    into 

account  in  fixing  the  penalty  especially  when  used  by  a  member 

of  a  ship's  crew  to  an  officer  thereof. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Earl  B.  Rose,  Esq.,  for  the  defence. 

«Cyc.,  XVIII,  98. 


UNITED  STATES  V.  DOMMER,  JULY  2,  1919.  915 

LOBINGIER,  J.: 

The  information  in  this  cause  charges  that  the  accused 

"at  the  time  being  chief  engineer  of  the  American  merchant  steam- 
ship 'Homestead,'  on  the  twenty-fourth  day  of  June,  A.  D.  1919, 
while  the  said  steamship  'Homestead'  was  on  the  high  seas,  and 
within  the  Admiralty  jurisdiction  of  this  Court,  did  then  and 
there  wilfully,  unlawfully  and  intentionally  assault  and  beat  one, 
Isadore  Darevski,  by  striking  him  the  said  Isadore  Darevski  on  the 
head  and  body  with  his  fists  and  by  kicking  him  in  the  abdomen, 
the  said  Isadore  Darevski  at  the  time  being  a  member  of  the  crew 
of  the  said  steamship  'Homestead';  and  thereby  the  said"  accused 
"was  and  is  guilty  of  the  crime  of  assault," 

This  Court  has  jurisdiction  over  offences  committed  on 
an  American  ship  "on  the  high  seas"  ^  and  the  principal 
question  is  the  extent  of  the  provocation.  For  it  is  ad- 
mitted that  there  was  an  assault  but  the  testimony,  even  of 
the  prosecution,  goes  to  show  that  the  complaining  witness 
applied  some  very  opprobrious  and  even  indecent  epithets 
to  the  accused  immediately  before  the  assault  took  place  and 
even  threatened  to  kill  the  latter.  It  is  true  that  the  com- 
plaining witness  testifies  that  he  does  not  remember  having 
used  this  language  but  other  witnesses  called  in  his  behalf 
as  well  as  those  of  the  defence  are  explicit  and  positive  to 
the  effect  that  he  did.  There  had  been  trouble  previously 
between  the  two  and  the  feeling  was  evidently  strong. 

But  while  there  is  some  support  -  for  counsel's  contention 
that  the  use  of  such  language  constitutes  justification  for 

^  In  re  Ross,  ante,  p.  40;  U.  S.  v.  Kilgore,  ante,  p.  395. 

In  the  second  criminal  proceeding  (U.  S.  v.  Nelson)  instituted 
herein  the  court  per  Wilfley,  J.,  on  January  11,  1907,  had  imposed 
a  sentence  of  three  years  imprisonment  upon  the  defendant,  "a 
regularly  enrolled  member  of  the  crew  of  the  American  registered 
steamship  Dakota  belonging  to  the  Great  Northern  Steamship  Com- 
pany, for  having  committed  the  crime  of  assault  with  a  dangerous 
weapon  on  board  the  said  steamship  at  the  mouth  of  the  Yangtse 
River  in  the  Empire  of  China  and  within  the  jurisdiction  of  this 
Court,  on  the  twenty-fifth  day  of  December,  1906,  upon  the  person 
of  one  Otto  Bratrud,  a  quartermaster  on  board  the  said  steamship." 

■"  Rogers  v.  State,  117  Ala.,  192,  23  So.,  82,  where  it  was  held  that 
an  instruction  should  have  been  given  that  "such  language  may  be 
taken  in  mitigation  or  justification  of  the  offence." 


9]^g  I    EXTRATERRITORIAL    CASES. 

assault  the  weight  of  authority  is  that  it  merely  mitigates 
the  punishment.-^ 

The  statute  '  under  which  this  prosecution  is  brought 
provides  no  minimum  penalty  but  does  provide  in  such  cases 
a  maximum  fine  of  $500  or  imprisonment  for  six  months 
or  both.  We  are  disposed  to  agree  with  the  District  At- 
torney that  the  defendant's  remedy  in  this  case  was  an 
appeal  to  the  master  of  the  vessel  thru  whom  any  punish- 
ment should  have  been  imposed.  But  on  the  other  hand  the 
discipline  of  the  ship  cannot  be  ignored  and  the  use  of 
such  offensive  language  by  a  member  of  the  crew  to  an 
officer  of  the  ship  in  the  hearing  of  passengers  and  other 
officers  afforded  strong  provocation  even  tho,  as  we  have 
seen,  it  did  not  excuse  the  assault. 

We  are  of  the  opinion  upon  a  review  of  the  evidence  that 
the  ends  of  justice  will  be  met  by  the  imposition  of  a  nominal 
fine.  The  accused  is  accordingly  sentenced  to  pay  a  fine 
of  ten  dollars  United  States  currency  and  the  costs  of  this 
prosecution. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Roberts,  Plaintiff,  v.  Roberts,  Defendant. 

[Cause  No.  775;  filed  July  2,  1919.] 

SYLLABUS. 
(By  the  Court.) 

DIVORCE:  GROUNDS.  As  the  China  Court  Regulations  contain  no 
grounds  for  divorce  those  prescribed  by  the  Act  of  Congress 
of  March  3,  1901,  the  latest  legislative  expression  on  the  subject, 
are  in  force  in  this  jurisdiction. 

2.  Id.  :    Effect.     But  said  court  regulations  do  prescribe  the   effect 

to   be   given   the   decree   by   declaring   that    (sec.    51)    "divorce 
releases  both  parties." 

3.  Id.  :    Drunkenness,  being  one  of  the  grounds   prescribed   in   said 

act,  is  a  cause  for  absolute  divorce. 

^Arkansas.     State  v.  Herrington,  21  Ark.,  195. 

Michigan.     People  v.  Ross,  66  Mich.,  94,  33  N.  W.,  30. 

Philippines.     U.   S.  v.   Malabanan,   9    Phil.,   262. 

Texas.     Timon  v.   State,  34  Tex.  Cr.  App.,  363,  30  S.  W.,  808. 

Cf .  Corpus  Juris,  V,  756. 

*  Federal  Penal  Code,  sec.  276. 


ROBERTS  V.  ROBERTS,  JULY  2,  1919.        917 

4.  Id.  :    Evidence   reviewed   and   found   sufficient   to   require   such   a 
decree. 

Messrs.  Rodger  &  Haskell,  by  Mr.  Rodger,  for  the  plain- 
tiff. 

Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Davies,  for  the 

defendant. 

LOBINGIER,  J.: 

The  plaintiff  in  her  amended  complaint  prays  for  a  decree 
of  absolute  divorce  alleging  habitual  drunkenness  on  the 
pait  of  defendant  and  the  use  by  him  toward  her  of  highly 
offensive  epithets  and  other  ill  treatment.  The  answer 
denies  these  charges  but  the  defendant  produced  no  evidence 
and  voluntarily  absented  himself  from  the  trial  tho  rep- 
resented by  counsel. 

It  appears  that  the  parties  lived  together  about  one  year 
after  their  marriage  and  plaintiff's  testimony  is  that  the 
defendant  became  intoxicated  almost  immediately  and  con- 
tinued to  become  so  nearlj^  every  week  until  she  was  forced 
to  leave  him.  This  testimony  is  corroborated  by  the  land- 
lady of  the  house  where  the  parties  lived  and  there  is  no 
contrary  evidence.  The  showing  seems  quite  as  strong  as, 
if  not  stronger  than,  in  other  cases  ^  where  decrees  were 
granted  on  that  ground. 

II. 

As  providing  the  grounds  for  divorce  in  this  jurisdiction 
we  applied  in  the  case  -  where  the  question  was  first  pre- 
sented to  us,  the  latest  legislative  expression,  to  wit,  the 
Act  of  Congress  relating  primarily  to  the  District  of  Co- 
lumbia.^ That  provision  specifies  "drunkenness"  (not  ne- 
cessarily habitual)  as  one  of  its  grounds.  An  earlier  act  * 
mentions  "habitual  gross  drunkenness."  We  see  no  reason 
for  changing  the  conclusion  which  required  the  application 
of  the  later  act  in  determining  the  grounds  for  divorce ;  but 

'McGill  V.  McGill,  19  Fla.,  341;  Blaney  v.  Blaney,  126  Mass.,  205; 
Delesdernier  v.  Delesdernier,  45  La.  Ann.,  1364,  14  So.,  191. 
^  Cavanagh  v.  Worden,  ante,  p.  371. 
'  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  966. 
'31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  II,  sec.  467. 


918  I    EXTRATERRITORIAL    CASES. 

in  doing  so  we  recognized  that  the  ejfect  of  such  grounds 
would  not  necessarily  be  determined  by  the  statute  in 
question.     For  in  the  case  ''  already  cited  it  was  observed : 

"In  the  Consular  Court  Regulations  already  mentioned  and  pro- 
mulgated by  the  American  Minister  under  the  express  authority 
of  Congress  it  is  provided  that  "Divorce  releases  both  parties,  and 
they  shall  not  be  remarried  to  each  other."  Whether  this  clause 
would  be  sufficient,  in  a  proper  case,  to  authorize  this  Court  to 
grant  an  absolute  divorce  for  either  of  the  grounds  here  alleged  is 
a  question  which  we  prefer  to  leave  open  until  such  case  arises." 

Such  a  case  is  now  before  us  and  calls  for  an  adjudication 
of  the  effect  of  these  court  regulations  as  to  the  point  now 
in  question.     It  is  well  settled  that  the  Act  creating  this 
Court  and  continuing  "the  existing  procedure"  '^  constitutes 
"an   affirmative   recognition   and   confirmation   of   such   of 
these  regulations  at  least  as  relate  to  procedure"  which  are 
thus  "clearly  and  unquestionably  made  binding  and  obli- 
gatory on  this  Court  by  direct  specific  enactment."  "     Ac- 
cordingly it  has  been  held  -  that  these  regulations  prevail 
even  over  Acts  of  Congress,  prior  or  subsequent,  which  might 
otherwise  be  applicable.     While,  therefore,  one  clause  of 
the    Act    of    Congress    which    provides    the    grounds    of 
"drunkenness,  cruelty  or  desertion"  limits  their  effect  tOj 
"legal  separation,"  ''  such  limitation  must  be  construed  inj 
the  light  of  the  general  provision  in  the  Court  Regulations 
that  "divorce  releases  both  parties."  ^°     That  provision  can] 
have  no  other  meaning  than  that  the  divorce  which  the 
regulations  contemplate  is  an  absolute  divorce  a  vinculo] 
matrimonii.     In  other  words  while  the  regulations  do  not 
provide  the  grounds  they  prescribe  the  effect  and  that  effect] 
must  be  given,  until  such  regulations  are  modified  in  thej 
proper  mode,  to  any  grounds  which  are  extended  here  by  the! 
supplementary   legislation    of   Congress.     We   are   of   the] 

°  Cavanagh  v.  Worden,  ante,  p.  371. 

'Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,j 
Sess.  I,  Ch.  3934,  sec.  5. 

'  Thayer,  J.,  in  U.  S.  v.  Engelbracht,  ante,  p.  169. 

*  Id. ;  Everett  v.  Swayne  &  Hoyt,  ante,  p.  867.  Ezra  v.  MerrimanJ 
ante,  p.  890. 

"  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  966. 

^'  China   Court   Regulations,   sec.   51. 


DAVIS  V.  TSU  EU  SUNG,  JULY  18,  1919.     "  919 

opinion,  therefore,  that  the  plaintiff  has  established  at  least 
one  ground,  if  not  more,  which  entitles  her  to  an  absolute 
divorce. 

It  is  accordingly  considered  and  decreed : 

1.  That  the  bonds  of  matrimony  heretofore  existing  between  the 
plaintiff  and  the  defendant  be  and  they  hereby  are  dissolved  and 
that  plaintiff  be  granted  a  decree  of  divorce  a  vinculo  matrimonii; 

2.  That  plaintiff  be  authorized  to  resume  her  maiden  name  of 
Emma  Turen; 

3.  That  defendant  pay  the  costs  of  this  proceeding; 

4.  That  neither  party  be  permitted  to  remarry  for  a  period  of  at 
least  six  months. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

John  Davis,  Plaintiff,  v.  Tsu  Eu  Sung,  carrying  on 
business  as  the  HoA  SuN  Iron  Works,  Defendant. 

[Cause  No.  790;  filed  July  18,  1919.] 
SYLLABUS. 

(By  the  Court.) 

1.  CONTRACTS:    INTERPRETATION.     "A   guarantee"   in   a   contract  for 

the  construction  of  tobacco  cutters  "that  the  said  machines 
are  in  good  working  condition"  must  be  construed  as  limited  to 
the  time  of  delivery. 

2.  Id.  :  Id.     A  further  provision  that  "this  agreement     *     *     *     shall 

terminate"  upon  delivery  and  payment  relieves  the  contractor 
from  liability  for  subsequent  occurrences. 

3.  Id.  :   Evidence  examined  and  found  insufficient  to  show  that  "at 

the  time  of  such  delivery  the  said  machines  were  not  in  work- 
ing order  and  could  not  be  used." 

4.  Id.  :  Damages.     Loss  of  profits  constitutes  a  proper  item  of  damage 

for  a  breach  of  contract  only  so  far  as  it  was  reasonably 
within  the  contemplation  of  the  parties  when  the  contract 
was  made. 

5.  Id.  :   Id.  :    Profits  from  collateral  enterprises  or  subcontracts  are 

not   usually   allowable. 

Messrs.  White-Cooper,  Master  &  Harris,  by  Mr.  Harris, 
for  the  plaintiff. 

Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Davies,  for  the 
defendant. 


920  '  I    EXTRATERRITORIAL    CASES. 

LOBINGIER,  J.: 

This  is  an  action  for  damages  in  the  sum  of  Tls.  2,500 
for  alleged  breach  of  a  written  contract  under  which  de- 
fendant constructed  for  plaintiff  two  tobacco  cutting  ma- 
chines with  a  "guarantee  *  *  *  that  the  said  machines 
are  in  good  working  condition."  It  is  undisputed  that  the 
machines  were  delivered  and  paid  for  by  the  time  fixed 
but  the  petition  alleges  that  "at  the  time  of  such  delivery 
the  said  machines  were  not  in  working  order  and  could 
not  be  used  by  plaintiff."  This  averment  is  expressly 
denied  by  the  answer  and  is  one  which  it  is  essential  for 
plaintiff  to  establish  by  a  preponderance  of  the  evidence 
for   it  alone   saved   the   petition   from   being   demurrable. 

Besides  himself,  who  has  had  no  experience  with  ma- 
chinery, plaintiff  called  two  witnesses — his  Chinese  work- 
man and  the  draftsman,  formerly  a  machinist,  who  repaired 
the  machines.  The  latter  testifies  that  there  were  certain 
original  defects  but  admits  that  he  did  not  know  the  condi- 
tion of  the  machines  prior  to  the  time  he  was  called  which 
was  six  weeks  or  more  after  delivery.  However,  he  was 
able  to  repair  all  defects  for  Tls.  78,  so  that  the  machines 
have  worked  satisfactorily  ever  since. 

Plaintiff's  Chinese  workman  stated  that  he  knew  nothing 
about  machinery,  except  that  he  does  know  when  a  ma- 
chine cuts  properly,  that  he  noticed  trouble  at  the  test; 
that  he  tried  to  adjust  the  knife  and  that  a  foreigner  who 
worked  with  him  (but  was  not  called  as  a  witness)  tried 
many  times  but  that  the  trouble  was  not  the  same  for  both 
machines  and  that  they  did  cut  some  tobacco. 

On  the  other  hand  defendant,  who  is  a  machinist,  trained 
in  America,  where  he  was  born,  testifies  that  he  was  present 
at  the  installation  of  the  machines ;  that  they  worked  prop- 
erly at  first  and  cut  all  the  tobacco  on  hand;  that  several 
days  later  plaintiff  telephoned  him  that  they  were  not  work- 
ing properly ;  that  defendant  found  that  plaintiff's  workmen 
did  not  know  how  to  adjust  the  machines;  and  that  the 
trouble  was   one  of  defective  adjustment  and  tightening 


DAVIS  V.  TSU  EU  SUNG,  JULY  18,  1919.  921 

of  the  screws.  In  this  connection  it  should  be  noted  that 
the  repairer  also  laid  stress  on  the  lack  of  adjustment  which, 
of  course,  is  not  an  inherent  defect.  Two  other  Chinese 
witnesses  were  called  by  defendant,  and  both  testify  that 
they  were  present  at  the  beginning  and  that  the  machines 
worked  properly  and  did  cut  tobacco.  The  one  not  in 
plaintiff's  employ,  says  that  they  "worked  very  well"  and 
the  other  states  that  later  the  screws  were  too  tight  but 
that  when  he  adjusted  them  the  machines  worked  properly. 
Upon  this  testimony  we  could  not  find  that  plaintiff  has 
met  the  burden  of  showing  that  the  "machines  were  not  in 
working  order  and  could  not  be  used"  at  the  time  of  delivery. 
For  the  "guarantee"  of  the  contract  that  "the  said  machines 
are  in  good  working  condition"  cannot  be  construed  as 
operating  from  any  later  date  than  that.  Moreover  the 
further  provision  that  "this  agreement  *  *  =>=  shall 
terminate"  upon  delivery  and  payment,  while  it  may  not 
mean  all  that  defendant  contends  for,  clearly  relieves  him. 
from  liability  for  occurrences  after  such  delivery.  Defend- 
ant was  certainly  not  bound  to  keep  the  machines  in  repair 
nor  to  provide  skilled  workmen  to  operate  them.  Indeed 
there  is  authority  ^  for  the  proposition  that  acceptance  in 
such  a  case  after  opportunity  to  inspect  waives  all  patent 
defects.  It  is  true  that  plaintiff,  under  an  independent 
contract,  was  having  a  shaft  constructed  without  which  the 
machines  could  not  be  tested  but  if  he  chose  to  accept 
delivery  before  such  test  could  be  made  it  was  not  defend- 
ant's fault. 


^  Iowa.  Frey-Sheckler  Co.  v.  Iowa  Brick  Co.,  104  la.,  494,  73  N. 
W.,    1051. 

Neiv  York.     Waeber  v.  Talbot,  167  N.  Y.,  48,  60  N.  E.,  288. 

Oregon.  Harrisburg  Lumber  Co.  v.  Washburn,  29  Or.,  150,  44 
Pac,  390;  Vanderhoof  v.   Shell,  42  Or.,  578,   72   Pac,  126. 

Texas.     Wunsch  v.  Boldt,  15  S.  W.,  193. 

Wisconsin.  J.  Thompson  Mfg.  Co.  v.  Gunderson,  106  Wis.,  449, 
82  N.  W.,  299;  Ashland  etc.  Co.  v.  Shores,  105  Wis.,  122,  81  N.  W., 
136;  Laycock  v.  Moon,  97  Wis.,  59,  72  N.  W.,  372;  Cream  City  Co.  v. 
Friedlander,  84  Wis.,  53,  54  N.  W.,  28. 


922  I    EXTRATERRITORIAL    CASES. 

II. 

But  even  were  it  established  that  at  the  time  of  delivery 
the  machines  needed  the  rather  minor  repairs  which  were 
subsequently  made  we  would  not  be  justified  in  allowing 
the  damages  here  claimed  which  consist  mainly  in  profits 
which  plaintiff  claims  he  could  have  made  during  the  period 
of  several  weeks  between  the  delivery  of  the  machines  and 
the  making  of  said  repairs.  Plaintiff  testifies  that  the 
cutting  capacity  of  the  machines  was  about  1,200  pounds  per 
day  and  that  he  made  a  profit  of  ten  cents  per  pound,  and 
he  claims  a  total  of  Tls.  2,500  or  about  three  times  the  total 
value  of  both  machines. 

The  rule  as  to  the  measure  of  damages  in  such  a  case 
was  stated  as  follows  by  Baron  Alderson  in  a  decision  ^ 
which  has  since  become  classic : 

"Where  two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in 
respect  of  such  breach  of  contract  should  be  such  as  may  fairly  and 
reasonably  be  considered  either  arising  naturally,  i.  e.,  according 
to  the  usual  course  of  things,  from  such  breach  of  contract  itself, 
or  such  as  may  reasonably  be  supposed  to  have  been  in  the  con- 
templation of  both  parties,  at  the  time  they  made  the  contract, 
as  the  probable  result  of  the  breach  of  it.  Now,  if  the  special 
circumstances  under  which  the  contract  was  actually  made  were 
communicated  by  the  plaintiifs  to  the  defendants,  and  thus  known 
to  both  parties,  the  damages  resulting  from  the  breach  of  such  a 
contract,  which  they  would  reasonably  contemplate,  would  be  the 
amount  of  injury  which  would  ordinarily  follow  from  a  breach  of 
contract  under  these  special  circumstances  so  known  and  com- 
municated. But,  on  the  other  hand,  if  these  special  circumstances 
were  wholly  unknown  to  the  party  breaking  the  contract,  he,  at 
the  most,  could  only  be  supposed  to  have  had  in  his  contemplation 
the  amount  of  injury  which  would  arise  generally,  and  in  the  great 
multitude  of  cases  not  affected  by  any  special  circumstances,  from 
such  a  breach  of  contract.  For,  had  the  special  circumstances  been 
known,   the   parties   might   have    specially   provided   for    the   breach 

'  Hadley  v.  Baxendale,  2  C.  L.  R.,  517,  9  Exch.,  341,  18  Jur.,  358, 
23  L.  J.  Exch.,  179,  2  Wkly.  Rep.,  302,  26  Eng.  L.  &  Eq.,  398,  5  Eng. 
Ruling  Cases,  504. 


DAVIS  V.  TSU  EU  SUNG,  JULY  18,  1919.  923 

of  contract  by  special  terms  as  to  the  damages  in  that  case;    and 
of  this  advantage  it  would  be  very  unjust  to  deprive  them." 

This  doctrine  has  generally  been  adopted  in  the  United 
States  ^  and  is  the  established  rule  of  this  Court/  It  is 
also  substantially  the  same  as  that  of  the  Civil  Law  ^  from 
which  indeed  it  appears  to  have  been  derived.'^ 

There  is  nothing  in  the  contract  itself  nor  in  any  evidence 
before  us  to  indicate  that  any  "special  circumstances"  were 
disclosed  to  defendant  as  regards  the  intended  use  of  the  ma- 
chines which  he  undertook  to  construct  nor  that  the  exist- 
ence of  what  was  at  most  a  minor  defect  would  impose 
upon  him  a  loss  of  three  times  the  amount  which  he  was 
to  receive  therefor.  On  the  contrary  defendant  testifies 
that  even  when  he  went  to  install  the  machines  he  found 
very  little  tobacco  at  plaintiff's  place  of  business  and  the 
latter  admits  that  he  purchased  none  until  after  the  ma- 
chines were  delivered.  His  claim  is  that  tobacco  was  always 
purchasable  and  that  he  had  opportunities  (of  which,  how- 
ever, no  details  are  given)  to  fill  profitable  orders  after 
the  machines  could  be  started.  But  the  rule  as  to  such  a 
claim  is  thus  stated  in  a  work  of  authority : 

"The  gains  or  profits  of  collateral  enterprises  or  subcontracts 
are,  as  a  rule,  too  speculative  and  contingent  to  afford  an  element 
of  recovery  in  the  case  of  a  breach  of  the  primary  contract.  Fur- 
ther, they  are  ordinarily  not  the  natural  and  probable  consequence  of 
such  breach."  ^ 

Upon  the  evidence  before  us,  therefore,  we  cannot  find 
that  plaintiff  has  made  a  case  for  damages  and  it  is  ac- 
cordingly considered  and  adjudged  that  he  take  nothing  by 
his  petition  and  that  defendant  recover  his  costs. 

"Corpus  Juris,  XVII,  793    (81). 

*  King  Ping  Kee  v.  American  Food  Manufacturing  Co.,  ante, 
p.   735. 

'France.     Civ.    Code,   Art.   1150. 

Germany.     Civ.    Code,   Art.    252. 

Japan.     Civ.  Code,  Art.  416. 

Louisiana.     Rev.  Civ.  Code,  Art.  1934    (1). 

Spain.     Civ.   Code,   Arts.   1105,   1107. 

'Bowas  V.  Pioneer  Tow  Line,  2  Sawy.  (U.  S.),  21,  30,  3  Fed.  Cas., 
1713. 

'Corpus  Juris,  XVII,  793,  794. 


924  I    EXTRATERRITORIAL    CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Harry  Ross,  Plaintiff,  v.  Kitty  Ross,  Defendant. 

[Cause  No.  843;  filed  December  24,  1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  MARRIAGE:    ANNULMENT:   JURISDICTION   of  this  court  to   annul   a 

marriage  reaffirmed. 

2.  Id.  :  Id.     Such  jurisdiction  is  not  affected  by  defendant's  alienage. 

3.  Id.  :   Grounds.     One  of  the  foremost  grounds  of  annulment  is  the 

existence  of  a   prior   valid  marriage. 

4.  Id.  :    Residence.     The  statutory  two  years'  residence,  required  of 

plaintiff  in   an  action   for  such  relief,  found  sufficiently  estab- 
lished. 

Paul  Myron  Linebarger,  Esq.,  for  plaintiff. 
Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Bryan,  for  de- 
fendant. 

LOBINGIER,  J.: 

This  is  a  proceeding  to  annul  a  marriage  celebrated  in 
Manila,  before  a  Justice  of  the  Peace,  on  January  12  of  this 
year.     As  a  ground  for  such  relief  plaintiff  alleges  (par.  4)  : 

"That  at  the  time  of  said  marriage  the  said  defendant  had  a 
former  husband  living,  and  that  said  defendant's  marriage  with 
said  former  husband  was  then,  to  wit,  at  the  time  of  said  plaintiff's 
said  marriage  to  the  said  defendant,  in  force  and  undissolved  by 
decree  of  divorce  or  otherwise." 

The  defendant  filed  no  answer  but  appeared  at  the  trial 
with  her  attorney  who  cross-examined  plaintiff's  witnesses. 
Defendant  was  also  called  to  testify  by  plaintiff. 

The  jurisdiction  of  this  court  to  annul  a  marriage  was 
fully  considered  and  upheld  in  a  former  decision  ^  and  one 
of  the  foremost  grounds  for  exercising  it  is  the  existence 
of  a  prior  marriage. - 

"If  either  of  the  parties  to  a  marriage  had  a  lawful  spouse  living 
and  un divorced  at  the  time,  the  second  marriage  is  absolutely  void 
and  may  be  so  declared  by  decree  of  court  in  proper  proceedings."  * 

'  Cavanagh    v.    Worden,    ante,    p.    317. 

=  Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  966   (1). 

'  Cyc,  XXVI,  904,  citing  numerous  authorities. 


ROSS  V.  ROSS,  DEC.  24,  1919.  925 

In  this  case  defendant  testifies  that  she  is  of  the  Jewish 
faith  and  race ;  that  in  1904  she  was  married  in  a  synagogue 
at  Odessa,  according  to  Jewish  custom  and  in  the  presence 
of  many,  to  one  Hein  Gurfinkel  but  that  no  document  evi- 
dencing said  marriage  was  given  her.  She  further  testifies 
that  she  lived  with  her  husband  only  two  or  three  years 
and  has  not  heard  from  him  since  1914.  The  seven  years 
necessary  to  raise  the  presumption  of  her  husband's  death  * 
had  not,  therefore,  elapsed  when  defendant  went  thru  the 
form  of  a  second  marriage  in  Manila.  Nor  would  the 
latter  be  valid  if  such  period  had  elapsed  even  now.     For 

"if  the  former  marriage  was  fully  in  force  at  the  time  of  the 
second  mar'-iage,  it  is  not  necessary  that  it  should  continue  in  force 
to  the  commencement  of  the  action  of  nullity."  ° 

Defendant  seems  not  to  have  disclosed  the  fact  of  her 
previous  marriage,  apparently  assuming  that  her  husband's 
disappearance  rendered  it  unnecessary.  Her  ignorance  of 
American  law  on  that  point  would  not  excuse  her;  but  the 
negligence  of  the  Manila  magistrate  in  failing  to  inquire 
carefully  into  the  marital  status  of  the  parties  appears 
even  less  excusable;  for  defendant  states  that  she  was  not 
asked  to  sign  anything.  The  case  affords  a  melancholy 
example  of  the  consequences  of  loose  administration  of  an 
important  public  function  and  of  the  necessity  of  some 
system  like  the  publication  of  banns. 

The  most  recent  legislation  ^  here  applicable  to  the  subject 
provides : 

"In  an  action  for  the  dissolution  of  the  marriage  contract  the 
plaintiff  therein  must  be  an  inhabitant  of  the  district  at  the  com- 
mencement of  the  action  and  for  two  years  prior  thereto,  which 
residence  shall  be  sufficient  to  give  the  court  jurisdiction  without 
regard  to  the  place  where  the  marriage  was  solemnized  or  the  cause 
cf  action  arose." 

Plaintiff  testifies  that  he  was  born  in  Detroit,  Michigan, 
came   as  a  volunteer  to  the   Philippines   and  in   1900  to 

*Wigmore,  Ev.,  sec.  2531,  p.  3579. 

'  Cyc,  XXVI,  904.  Cf.  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854, 
sec.  966    (1). 

"Act  of  Congress  of  March  2,  1903,  Sess.  II,  32  U.  S.  Stats. 
at  Large,  Ch.  978,  sec.  2,  p.  944. 


926  I    EXTRATERRITORIAL    CASES. 

Shanghai  which  place,  he  says,  he  has  since  regarded  as  his 
residence  and  to  which  he  has  always  returned  from  tem- 
porary sojourns  in  Manila  and  elsewhere.  He  further 
states  that  he  has  paid  taxes  in  Shanghai  and  has  never 
voted  in  any  other  place.  In  the  absence  of  any  positive 
contrary  showing  we  must  regard  this  as  sufficient  to  bring 
the  case  within  the  terms  of  the  statute  above  quoted. 

Since  the  supposed  second  marriage  was  invalid  it  neces- 
sarily did  not  have  the  effect  of  changing  the  nationality  of 
defendant  who  remained,  as  she  had  been,  a  Russian  subject. 
If,  therefore,  the  proceeding  were  in  personam  this  court 
would  not  have  jurisdiction.  But  the  only  specific  relief 
sought  is  annulment  of  the  marriage,  it  is  merely  a  proceed  > 
ing  in  rem  and  the  court  has  jurisdiction,  regardless  of  de- 
fendant's nationality,  to  decree  such  annulment,  tho  not 
to  award  relief  against  her  as  to  costs  or  otherwise." 

The  supposed  marriage  of  January  12,  1919,  between 
the  parties  is  accordingly  considered  and  decreed  to  be 
wholly  null  and  void  and  plaintiff'  is  declared  free  from  any 
obligations  arising  therefrom  but  liable  for  the  costs  of 
this  action. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

The  Barkley  Company,  Inc.,  Plaintiff,  v.  William  E. 
Maloney,  Defendant. 

[Cause  No.  814;  filed  December  29,  1919.] 

SYLLABUS. 
(By  the  Court.) 

1.  COURT   COMMISSIONERS  were  made   a   part  of  the   American   ju- 

dicial   machinery    in    China    before    the    establishment    of    this 
court  which  inherited  the  jurisdiction  to  appoint  them. 

2.  Id.:    Powers   and    Duties.     Legislation    regarding   the    duties    of 

such  Commissioners  has  been  supplied  by  cei'tain  special  Acts 
of  Congress. 

3.  Id.  :    Id.     Such   officials   have  the   powers   of    United    States   Com- 

missioners but  are  distinct  from  the  latter  and  are  not  subject 
to   their   limitations. 

'  Richards  v.  Richards,  ante,  p.  480. 


BARKLEY  CO.  V.  MALONEY,  DEC.  29,  1919.     927 

4.  Id. :    Status.     A    Commissioner    does   not   constitute   a    court;    his 

function  is  merely  to  assist  the  court  appointing  him   and  to 
whose  orders  and   directions  he  is   subject. 

5.  Id.  :   Reference  to  a  Commissioner  of  a  whole  civil  cause  involv- 

ing  more   than    $500    is    unusual   where   the    Judge    is    in    the 
district. 

Paul  Myron  Linebarger,  Esq.,  for  plaintiff. 
Richard  T.  Evans,  Esq.,  for  defendant. 

LOBINGIER,  J.: 

This  is  an  action  for  an  accounting  in  which  plaintiff's 
counsel  presents  a  motion  for  a  trial  before  the  Commis- 
sioner at  Shanghai  reciting  inter  alia 

"That  certain  essential  and  necessary  witnesses  of  the  said  plain- 
tiff are  about  to  leave  the  jurisdiction  of  this  Commissioner's  Court 
/■*     *     *\ 

"That  the  jurisdi -tion  of  the  above  cause  is  vested  and  inures  only 
in  the  Court  wherein  the  plaintiff's  complaint  was  filed,  and  that 
hence  the  above  cause  is  only  triable  in  the  Commissioner's  juris- 
diction as  above  shown  at  Shanghai." 

This  implies  a  misconception  of  the  nature  and  duties  of 
the  Commissioner's  office  which  calls  for  an  exposition 
thereof.  The  office  of  Commissioner  was  made  a  part  of 
the  American  judicial  machinery  in  China  by  the  very  first 
enactment  ^  providing  for  the  exercise  of  extraterritoriality. 
In  the  beginning  that  official  had  other  functions  but  from 
the  first  his  judicial  powers  were  broad  and  important.- 

By  the  Consular  Court  Regulations  for  China,  promul- 
gated by  Minister  Burlingame  in  1864,  it  was  provided  that 

"On  application  of  either  party  and  advance  of  the  fees,  the 
consul  shall  compel  the  attendance  of  any  witness  within  his  juris- 
diction before  himself,  referees,  or  commissioners.' 

It  will  be  seen  that  this  necessarily  implies  the  existence 
of  the  office  of  Commissioner.  The  consul  could  hardly  be 
required,  as  he  was  by  this  provision,  to  "compel  the  at- 
tendance    of    any    witness     *     *     *         before     *     *     * 


^Act  of  Congress  of  August  11,  1848,  9  U.   S.   Stats,  at  Large, 
Sess.  I,  Ch.  150. 

'Id.,  sec.  13,  p.  278. 
*Sec.   12. 


928  I   EXTRATERRITORIAL    CASES. 

commissioners,"  unless  those  officials  were  recognized  by 
law ;  and  since  no  other  mode  of  appointment  was  provided 
it  naturally  followed  that  the  consul  himself  could  appoint 
them.  He  did  refer  causes  to  such  officials  and  a  judgment 
therein  rendered  will  be  enforced  by  courts  in  the  United 
States.* 

Moreover  the  office  of  Commissioner  is  analogous  to  those 
of  masters,  referees  and  arbitrators  ■'  and 

"The  power  of  a  court  of  justice,  with  the  consent  of  the  parties, 
to  appoint  arbitrators  and  refer  a  case  pending  before  it,  is  incident 
to  all  judicial  administration,  where  the  I'ight  exists  to  ascertain 
the  facts,  as  well  as  to  pronounce  the  law.     Conventio  facit  legem." ' 

The  Consuls,^  again,  exercised  equity  jurisdiction  as  does 
this  Court  now  ^  and  in  equity  a  cause  may  be  referred 
even  without  the  consent  of  the  parties.'*  And  where  "there 
is  no  law  providing  how  their  duties  shall  be  performed" 
Commissioners  "so  far  as  relates  to  their  administrative 
action  *  *  *  were  intended  to  be  subject  to  the  orders 
and  directions  of  the  court  appointing  them."  ^"^ 

II. 

The  Court  Regulations  above  quoted  from  were  confirmed 
and  given  the  force  of  Acts  of  Congress,  subject  to  amend- 

*  Newman  v.   Basch,  ante,  p.   469. 

■^Cyc,    XXXIV,    775,   776. 

'  Swayne,  J.,  in  Newcomb  v.  Wood,  97  U.  S.,  581,  24  L.  ed.,  1085. 
Cf.  Kimberly  v.  Arms,  129  U.  S.,  512,  32  L.  ed.,  764,  holding-  that 
the  whole  case  may  be  referred  and  that  the  findings  cannot  be 
disregarded  by  the  Judge. 

'Act  of  Congress  of  June  22,  1860,  Sess.  I,  12  U.  S.  Stats,  at 
Large,  Ch.  179,  sec.  4,  p.  73. 

'Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Ch. 
3934,  sec.  4. 

"  California.     Smith  v.  Rowe,  4   Cal.,   6. 

Iowa.     Hobart  v.  Hobart,  45  la.,  501 ;   State  v.  Orwig,  25  la.,  280. 

Maine.     State  v.  Mclntyre,  53  Me.,  214. 

Nebraska.  Hanson  v.  Hanson,  78  Neb.,  584,  111  N.  W.,  368,  and 
citations. 

South  Carolina.     McCrady  v.  Jones,  36  S.  C,  136,  15  S.  E.,  430. 

Utah.     Nephi  Irrigation  Co.  v.  Jenkins,  8  U.,  369,  31  Pac,  986. 

Wisconsin.     Gilbank  v.  Stephenson,  31  Wis.,  592. 

'"Brown,  J.,  in  U.  S.  v.  Allred,   155  U.  S.,  591,  39  L.  ed.,  273. 


BARKLEY   CO.    V.    MALONEY,   DEC.    29,    1919.  929 

ment  by  the  judge  of  this  court,  in  the  legislation  creating 
it.^^     As  was  said  by  our  predecessor : 

"All  the  existing  regulations  had  been  laid  before  Congress,  as 
required  by  law,  many  years  before  this  statute  was  passed,  it 
must  be  presumed,  under  well  established  doctrine,  that  Congress 
had  full  knowledge  of  these  regulations/'  In  fact  it  appears  to 
the  Court  that  the  provision  referred  to  can  not  be  considered 
as  anything  less  than  an  affirmative  recognition  and  confirmations 
of  such  of  these  regulations  at  least  as  relate  to  procedure.  *  *  * 
Whatever  objections  may  have  been  theretofore  made  to  these 
regulations  *  *  *  \i  seems  clear  to  the  Court  that  the  pres- 
ent action  of  Congress,  in  respect  to  such  then  existing  regulations 
as  relate  to  procedure  of  the  Consular  Courts,  operates  not  only 
as  a  confirmation  of  such  rules  but  practically  as  an  enactment  of 
such  regulations,  exactly  the  same  as  if  they  had  been  verbally 
recited   in    the    act    itself." " 

Moreover  the  legislation  in  question  conferred  upon  this 
Court 

"jurisdiction  in  all  cases  and  judicial  proceedings  whereof  jurisdic- 
tion may  now  be  exercised  by  United  States  consuls,"  etc." 

The  jurisdiction  which  the  consuls  possessed  to  appoint 
commissioners  and  to  compel  the  attendance  of  witnesses 
before  them,  seems  clearly,  therefore,  to  have  passed  to  this 
court  by  its  Organic  Act.  But  neither  that  Act,  nor  the 
preceding  legislation  relative  to  consular  courts,  contained 
adequate  provisions  defining  the  powers  of,  and  procedure 
before,  the  commissioners  to  be  appointed  by  the  courts. 
For  such  provisions,  as  for  many  others  applied  in  the 
exercise  of  judicial  authority  here,  we  must  refer  to  those 
other  "laws  of  the  United  States"  which  were  from  the  first 
"extended  over  all  citizens  of  the  United  States  in  China."  ^^ 


"Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large, 
Ch.  3934,  sec.  5. 

'-Citing  Clinton  v.  Englebrecht,  13  Wallace  (U.  S.),  446,  20  L. 
ed.,  659. 

"  Thayer,  J.,  in  U.  S.  v.  Engelbracht,  ante,  p.  169. 

"  Act  of  Congress  of  June  30,  1906,  34  U.  S.  Stats,  at  Large,  Ch. 
3934,  sec.  1. 

"Act  of  Congress  of  Aug.  11,  1848,-9  U.  S.  Stats,  at  Large,  Sess. 
I,  Ch.  150,  sec.  4;  Act  of  June  22,  1860,  12  U.  S.  Stats,  at  Large, 
Ch.  179,  sec.  4  (U.  S.  Rev.  Stats.,  sec.  4086)  ;  Act  of  June  30,  1906, 
34  U.  S.  Stats,  at  Large,  Ch.  3934,  sec.  4. 

14008    O.    W. 59 


930  I  EXTRATERRITORIAL  CASES. 

On  May  17,  1884,  the  President  was  authorized  to  appoint 
four  commissioners  for  the  District  of  Alaska  with  probate 
jurisdiction  and  powers  of  recorders,^'^  and  on  June  4,  1897, 
four  additional  commissioners  were  provided. ^^  By  the 
statute  of  March  3,  1899,  it  was  enacted: 

"In  addition  to  the  commissioners  appointed  by  the  President  of 
the  United  States  in  pursuance  of  Acts  of  Congress  now  in  force, 
or  that  may  be  hereafter  enacted,  the  judge  of  the  district  court 
*  *  *  may  appoint  commissioners,  who  shall  reside  at  such  places 
as  he  may  designate  in  the  order  of  appointment,  and  who  shall 
perform  the  duties  and  exercise  the  powers  conferred  upon  justices 
of  the  peace  by  this  Act."  " 

The  foregoing  was  supplemented  the  next  year  by  this 
provision : 

"The  commissioners  shall  be  ex  officio  justices  of  the  peace,  re- 
corders, and  probate  judges,  and  shall  perform  all  the  duties  and 
exercise  all  the  powers,  civil  and  criminal,  imposed  or  conferred  on 
the  United  States  Commissioners  by  the  general  laws  of  the  United 
States  and  the   special  laws   applicable  to  the  district. 

"They  shall  also  have  power  to  grant  writs  of  habeas  corpus  for 
the  purpose  of  inquiring  into  the  cause  of  restraint  of  liberty, 
which  writs  shall  be  made  returnable  before  a  district  judge,  and 
like  proceedings  shall  be  had  thereon  as  if  the  same  had  been  granted 
by  the  judge  under  the  general  laws  of  the  United  States  in  such 
cases.  The  commissioners  shall  also  have  the  powers  of  notaries 
public."  " 

Various  other  provisions  governing  the  jurisdiction,  civil 
and  criminal,  of  the  Commissioner  are  embodied  in  these 
Acts  -"  and  the  intention  is  clear  to  provide  an  official  who 
shall  assist  the  court  by  relieving  the  Judge  in  minor  causes 
or  by  acting  in  the  latter's  absence. 

These  enactments,  it  is  true,  were  made  primarily  for 
another  jurisdiction ;  but  it  was  one  whose  condition's  as 

"23  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  53,  sec.  5. 

''  30  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  II,  p.  56. 

"Act  of  Congress  of  March  3,  1899,  30  U.  S.  Stats,  at  Large,  Sess. 
Ill,  Ch.  429,  Tit.  II,  sec.  408. 

'"  Act  of  Congress  of  June  6,  1900,  31  U.  S.  Stats,  at  Large,  Sess. 
I,  Ch.  786,  Tit.  I,  sec.  6. 

'"Sees.  271,  272  and  410,  Tit.  II,  of  the  Act  of  March  3,  1899;  sees. 
703,  763,  Tit.  II,  of  the  Act  of  June  6,  1900. 


BARKLEY   CO.   V.    MALONEY,   DEC.    29,    1919.  931 

regards  a  sparse  and  widely  scattered  American  popula- 
tion closely  resemble  this,  and  it  is  the  settled  doctrine  that 
these  "laws  of  the  United  States"  are  applicable  here  if 
"suitable"  and  "necessary  to  execute  the  treaties"  tho 
originally  enacted  for  a  limited  area.-'  That  these  provi- 
sions regarding  the  Commissioner  are  both  "suitable"  and 
"necessary"  is  apparent  on  their  face ;  for  the  Alaska  situa- 
tion, to  meet  which  they  weie  originally  intended,  is  more 
than  reproduced  here,  viz.,  an  extensive  territorial  juris- 
diction in  only  a  small  part  of  which  the  Judge  may  be 
personally  present  and  which  requires  the  assistance  of  one 
or  more  Commissioners  to  meet  emergencies  which  arise  in 
the  Judge's  absence. 

It  should  be  noted,  moreover,  that  these  officials,  while 
exercising  the  powers  (which  relate  almost  entirely  to 
criminal  causes  --)  of  United  States  Commissioners  are  very 
different  functionaries,  having  an  extensive  authority  in 
civil  matters,  and  are  not,  therefore,  subject  to  the  limita- 
tions and  restrictions  -^  of  such  Commissioners. 

III. 

By  statute,  therefore,  as  well  as  inherently,  this  court  has 
power  to  appoint  Commissioners  and  refer  causes  to  them. 
In  exercise  thereof  as  long  ago  as  1915,  a  standing  Com- 
missioner was  named  to  reside  at  Shanghai  and  one  has 
ever  since  been  functioning  there.  But  no  "commissioner's 
court"  was  thereby  created  as  appears  to  be  assumed  in 
the  motion  before  us.  Invariably  the  jurisdiction  is,  and 
always  has  been,  that  of  the  United  States  Court  for  China, 
its  Judge  being  merely  assisted  in  certain  cases  by  the 
Commissioner.  And  we  have  been  cited  to  no  law,  nor  do 
we  know  of  any,  which  gives  one  party  to  a  civil  cause  the 
right  to  demand  a  hearing  before  the  Commissioner  even 
tho  the  latter  might  be  authorized  to  conduct  one. 

■'  Biddle  v.  United  States,  ante,  p.  120;  U.  S.  v.  Allen,  ante,  p.  308; 
Cavanagh  v.  Worden,  ayite,  p.  320;  U.  S.  ex  rel.  Raven  v.  McRae, 
ante,  p.  655. 

''  U.  S.  V.  Allred,  155  U.  S.,  591,  39  L.  ed.,  273. 

■'  See  29  U.  S.  Stats,  at  Large,  p.  184. 


932  I  EXTRATERRITORIAL  CASES. 

In  the  case  at  bar  plaintiff 

"prays  judg^nent  against  said  defendant  for  the  sum  of  one  thousand 
dollars,  United  States  currency  ($1,000  Gold)  together  with  his  costs, 
outlays  and  disbursements." 

But  the  Commissioner,  even  when  acting  as  a  justice  of 
the  peace,  has  jurisdiction 

"For  the  recovery  of  money  or  damages  only  when  the  amount 
claimed  does  not  exceed  one  thousand  dollars."  "'* 

If,  however,  the  case  were  clearly  one  which  could  prop- 
erly be  referred  to  the  Commissioner  that  course  would 
not  ordinarily  be  taken  if  it  involved  more  than  $500,  and 
the  Judge  were  in  the  district  at  the  time. 

Defendant  resides  at  Tientsin  and  in  accordance  with 
this  court's  practice  of  trying  causes  in  the  district  of  de- 
fendant's residence  whenever  practicable,  the  case  was 
called  for  trial  at  the  court's  recent  session  in  that  place 
but  was  continued  by  reason  of  plaintiff's  absence.  Defend- 
ant's counsel  agreed,  however,  that  the  cause  might  be 
heard  on  depositions. 

The  motion  for  a  hearing  before  the  Commissioner  is 
overruled  but  plaintiff  is  authorized  to  proceed  to  the  taking 
of  depositions,  first  serving  the  interrogatories  upon  defend- 
ant's counsel  and  affording  the  latter  an  opportunity  to 
furnish  cross-interrogatories. 

Exceptions  to  Commissioner's  Orders.  In  cause  No.  887  {In  re 
Guardianship  of  Gerald  D.  Lucker,  a  minor)  the  same  Judge  en- 
tered the  following  order  on   December  11,  1919. 

This  Cause  comes  on  for  hearing  upon  Exceptions,  filed  under 
the  Act  of  Congress  of  June  6,  1900,'  to  that  part  of  the  Commis- 
sioner's Order  of  December  4,  which  requires  a  public  sale  of  the 
property  therein  mentioned.  In  imposing  said  requirement  the  Com- 
missioner appears  to  have  applied  sees.  278,  839,  and  929  of  the 
same  title.  But  the  later  Act  of  March  3,  1901,  specifically  author- 
izes a  sale  of  the  ward's  property  "upon  such  terms  as  to  cash 
and   credit    as   the   court   may   direct" "    and   provides   even   for   "an 

"  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  Tit.  II,  sec.  703. 

'  31  U.  S.  Stats,  at  Large,  Sess.  I,  Ch.  786,  Tit.  II,  sees.  941-948. 
'  31  U.  S.  Stats,  at  Large,  Sess.  II,  Ch.  854,  sec.  160. 


AUGUSTIN  V.  AUGUSTIN,  JAN.  6,  1920.  983 

exchange  of  his  said  property  for  other  property" '  which  could  not 
be  effected  at  public  sale.  It  is  evident,  therefore,  that  the  court 
is  given  discretion  as  to  the  character  of  the  sale  and  this  is  highly 
expedient  for  often  a  private  sale  may  be  negotiated  at  a  better 
figure  than  a  public  one.  From  the  aflRdavits  filed  in  support  of 
the  exceptions  it  appears  that  such  is  the  case  here  and  that  an 
offer  has  already  been  received  which  is  higher  than  would  probably 
be  realized  at  public  sale,  and  which,  in  view  of  the  (to  the  ward) 
very  favorable  condition  of  the  exchange  market  it  would  be  highly 
disadvantageous  to  run  the  risk  of  losing.  In  view  of  the  further 
fact  that  the  guardian  is  also  the  father  of  the  ward  and  is  an 
alert  business  man  as  well  as  a  member  of  the  bar  of  this  court  it 
seems  reasonable  to  suppose  that  his  belief  is  well  founded  that  the 
acceptance  of  said  offer  is  to  the  best  interests  of  said  ward. 

So  much  of  the  Commissioner's  order  of  December  4,  1919,  a« 
requires  a  public  sale  with  notice  is  therefore  eliminated;  but  in 
other   respects  the   said  order   is   confirmed. 

It  is  further  ordered  that  the  proceeds  of  said  sale  may  be  de- 
posited at  interest  in  any  one  or  more  of  the  foreign  banks  of 
Tientsin. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Frank  Augustin,  Plaintiff,  v.  Rosario  Perez  Augustin, 

Defendant. 

[Cause  No.  891;  filed  January  6,  1920.] 

SYLLABUS. 
(By  the  Court.) 

1.  DIVORCE:     GROUNDS:    INFIDELITY   found   sufficiently   established   by 

the  evidence. 

2.  Id.  :  Desertion  is  not  shown  by  mere  separation  as  the  result  of  an 

agreement. 

3.  Id.:  Non-support.     The  husband's  liability  for  support  ceases  with 

the  wife's   infidelity. 

Paul  Myron  Lineharger,  Esq.,  for  plaintiff. 
Arthur  S.  Allan,  Esq.,  for  defendant. 

LOBINGIER,  J.: 

The  parties  to  this  cause  were  married  in  1913  in  the 
Philippines,  of  which  defendant  is  a  native,  plaintiff  being 

'Id.,  sec.  156. 


934  I  EXTRATERRITORIAL  CASES. 

a  colored  American.  They  lived  together  until  about  April 
of  last  year  when  they  separated,  the  husband  continuing, 
however,  to  contribute  to  the  support  of  the  wife.  He  tes- 
tifies that  he  suspected  her  of  infidelity  and  employed  a 
detective  to  watch  the  house  where  she  lived;  that  on  the 
evening  of  November  29  he  was  advised  that  a  man  had 
entered  the  house  and  that  he  proceeded  there  with  several 
witnesses,  entered  the  wife's  room  and  found  her  in  bed 
with  a  man.  Plaintiff  is  directly  corroborated  by  two  wit- 
nesses (one  of  them,  at  least,  apparently  disinterested)  and 
partially  by  two  others,  while  defendant's  improbable  ex- 
planation of  the  man's  presence  in  her  room  is  wholly 
insufficient  to  overcome  the  showing  of  these  witnesses. 
We  must  find,  therefore,  plaintiff's  charge  of  adultery  suf- 
ficiently established  and  affording  ground  for  a  divorce 
a  vinculo  matrimonii.^ 

Defendant  files  a  cross-complaint  asking  a  divorce  upon 
the  ground  of  desertion  and  non-support.  The  two,  as  has 
been  stated,  were  living  apart  when  the  act  of  infidelity  in 
question  was  committed;  but  plaintiff  testifies  that  they 
had  separated  by  agreement  and  we  find  no  contradiction 
thereof  by  defendant.     The  rule  is  that 

"An  agreement  for  separation  which  has  not  been  revoked,  and 
under  which  the  spouses  are  living  apart,  precludes  either  from 
obtaining  a  divorce  for  desertion,  unless  the  cause  of  action  there- 
for had  fully  accrued  at  the  time  the  agreement  was  entered  into."- 

As  to  non-support  the  answer  alleged  that  from  the 
separation  until  November  15,  plaintiff  "allowed  defendant 
the  sum  of  $90  per  month  for  the  maintenance  of  herself 
and  the  two  children"  one  of  whom  was  not  plaintiff's.  His 
refusal  to  continue  the  allowance  after  becoming  convinced 
of  her  unfaithfulness  appears  to  have  been  legally  justified. 

"Ordinarily,  if  husband  and  wife  are  living  apart  under  circum- 
stances rendering  him  liable  for  her  support,  then  if  she  commits 
adultery,   his   liability   ceases.     Even,   by   the    English    doctrine,   her 


'Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  966. 
'  Cyc,  XIV,  636. 


IN  RE  ESTATE  OF  GEORGE,  JAN.  17,  1920.       935 

adultery    relieves    him    of    maintaining   her,    tho    he    also    is    guilty 
of  the  same  offence." " 

There  is  but  one  child  of  the  marriage — a  boy  of  about 
five — of  whom  plaintiff  prays  the  custody,  undertaking"  to 
place  him  in  a  suitable  children's  home  to  be  reared.  Ob- 
viously that  is  more  conducive  to  the  boy's  welfare  than 
leaving  him  with  the  defendant  in  view  of  the  testimony 
above  reviewed. 

It  is  accordingly  considered  and  decreed  that  the  bonds 
of  matrimony  heretofore  existing  between  plaintiff  and 
defendant  be,  and  the  same  are,  hereby  dissolved;  that  de- 
fendant be  prohibited  from  remarrying  at  all  and  plaintiff 
for  a  period  of  six  months;  that  the  latter,  so  long  as  he 
carries  out  the  undertaking  above  mentioned,  have  the  cus- 
tody of  their  minor  child,  John  Augustin ;  but  that  neither 
party  recover  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Estate  of  Frederick  Peterson  George,  Deceased. 

[Cause  No.  913;  filed  January  17,  1920.] 

SYLLABUS. 
(By  the  Court.) 

NUNCUPATIVE   WILLS   are   permissible   in   this   jurisdiction   by  none 
other  than  soldiers  in  service  and  mariners  at  sea. 

Lobingier,  J.: 

The  following  instrument  is  offered  for  probate  in  this 
proceeding : 

"Siangyang,  Hupeh,  January  6,  1920. 

Last  words  of  Frederick  Peterson  George  pertaining  to  the  disposal 
of  his  property. 

The  undersigned,  Odd  Eckfelt,  was  present  at  the  death  bed  of 
Frederick  Peterson  George  who  died  at  2:15  A.  M.  on  October  25, 
1919,  in  the  Bethesda  Union  Hospital  at  Siangyang,  Hupeh,  China. 

'Bishop,  Marriage  &  Divorce  (6th  ed.),  574.  Cf.  New  Work,  I, 
sec.  1230,  citing  Cooper  v.  Lloyd,  6  C.  B.  N.  S.,  519;  Atkyns  v.  Pearce, 
2  C.  B.  N.  S.,  763;  Govier  v.  Hancock,  7  T.  R.,  603,  in  effect,  affirmed 
in  Rex.  v.  Flintan,  1  B.  «&  Ad.,  227;  Needham  v.  Bremmer,  Law  Rep. 
1  C.  P.,  583. 


936  I  EXTRATERRITORIAL  CASES. 

About  two  hours  before  the  death  of  the  said  Frederick  Peterson 
George,  he,  being  fully  conscious  and  of  sound  mind,  made  the 
following  statement:  'AH  my  books  and  other  effects  are  to  be  sold 
and   the   proceeds  given  to   the   mission.' 

No  further  or  subsequent  statement  was  made  by  the  said  Fred- 
erick  Peterson    George   regarding  his   property. 

In  addition  to  the  undersigned,  Odd  Eckfelt,  the  following  per- 
sons were  present  at  the  time  the  above  mentioned  statement  was 
made  by  the  said  Frederick  Peterson  George:  Miss  Ellen  Ackerson 
of  Siangyang,  Hupeh,  China,  and  Mr.  Albert  Anderson  of  Fancheng, 
Hupeh,   China. 

(Sgd.)     Odd   Eckfelt,   M.   D. 

Physician  in  charge. 
Ellen  Ackerson." 

Unwritten  or  nuncupative  wills,  like  most  features  of 
our  testamentary  law,  are  of  Roman  origin,  and  were  re- 
stricted to  soldiers  in  service  ^ — an  instance  of  Rome's  par- 
tiality for  the  military  arm.  Modern  statutes  -  have  added 
another  class — "mariners  at  sea" — and  such  is  the  law  of 
this  jurisdiction.^ 

The  privilege  is  confined  to  these  two  classes;  the  wills 
of  all  others  must  be  in  writing  and  either  subscribed,  or 
written,  by  the  testator,^ 

The  deceased  was  a  missionary  and  did  not  belong  to 
either  of  the  two  classes  above  mentioned.  Whatever  he 
might  have  said  orally,  therefore,  as  to  the  disposition  of  his 
property  was  wholly  ineffective  in  law.  The  case  affords 
but  another  instance  of  the  unfortunate  consequences  of 
postponing  the  preparation  of  a  will  until  it  is  too  late  to 
make  one. 

Let  the  application  for  probate  be  denied  and  the  proceed- 
ing continue  as  one  for  administration  only. 


'  Justinian's  Institutes,  Lib.  II,  Tit.  XI. 

"The  only  person  who,  in  Roman  law,  can  make  a  valid  will 
without  any  formality  whatever  is  a  soldier  on  active  service  {tes- 
tamentum  militis)."     Sohm,  Roman  Law   (3d  ed.),  548. 

=  Cyc.,  XI,  1134,  note  60. 

'Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  16-34;  Act  of  Congress  of  June  6,  1900,  Sess.  I, 
31  U.  S.  Stats,  at  Large,  Ch.  786,  Tit.  Ill,  sec.  147. 

'Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  1626;  Act  of  Congress  of  June  6,  1900,  Sess.  I, 
31  U.  S.  Stats,  at  Large,  Ch.  786,  Tit.  Ill,  sees.  138,  166. 


IN  RE  SAN  JUAN'S  WILL,  JAN.   28,   1920.  937 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Ill  re  Angeles  San  Juan's  Will. 

[Cause  No.  611;  filed  January  28,  1920.] 

SYLLABUS. 

•By  the  Court.) 

NATURAL  CHILDREN:  SUCCESSION.  The  estate  of  a  natural  child 
who  dies  intestate,  and  whose  mother  is  likewise  dead,  passes 
to  the  latter's  heirs  at  law. 

LOBINGIER,  J.: 

The  deceased,  who  was  a  Filipina,  left  a  will  in  the  Ta- 
galog  language  bequeathing  all  her  property,  which  is 
personalty,  to  a  natural  daughter.  After  the  issuance  of 
letters  testamentary  the  daughter  died  in  infancy  and  the 
question  is  presented,  now  for  the  first  time,  it  is  believed, 
in  this  jurisdiction,  as  to  the  proper  distribution  of  the 
estate,  under  such  circumstances. 

The  latest  legislation  applicable  to  the  subject  appears 
to  be  the  following: 

"The  illegitimate  child  or  children  of  any  female  and  the  issue  of 
any  such  illegitimate  child  or  children  shall  be  capable  to  take  from 
their  mother,  or  from  each  other,  or  from  the  descendants  of  each 
other,  in  like  manner  as  if  born  in  lawful  wedlock.  When  an  il- 
legitimate child  or  children  shall  die  leaving  no  descendants,  or  broth- 
ers or  sisters,  or  the  descendants  of  such  brothers  or  sisters,  then 
and  in  that  case  the  mother  of  such  illegitimate  child  or  children,  if 
living,  shall  be  entitled  as  next  of  kin,  and  if  the  mother  be  dead 
the  next  of  kin  of  the  mother  shall  take  in  like  manner  as  if  such 
illegitimate  child  or  children  had  been  born  in  lawful  wedlock."  ^ 

In  this  case  therefore,  we  need  only  ascertain  who  are 
"next  of  kin."  The  deceased  left  surviving  both  parents 
and  one  sister ;  but  the  law  is  that 

"If  there  be  a  father  and  no  child  or  descendant,  the  father  shall 
have  the  whole."  ^ 

'  Act  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at  Large,  Ch.  854, 
sec.  387.  Cf.  sec.  958  as  amended  by  Act  of  June  30,  1902,  Sess.  I, 
32  U.  S.  Stats,  at  Large,  Pt.  I,  Ch.  1329,  p.  537,  applying  the  same 
rule  to  realty. 

=  Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  380. 


938  I  EXTRATERRITORIAL  CASES. 

The  fact  that  the  daughter  died  while  still  an  infant, 
more  than  a  year  ago,  and  that  no  suggestion  has  come 
from  any  source  that  ah  administration  of  her  estate  is 
necessary,  seems  to  justify  the  distribution,  under  the 
statutes  above  quoted,  of  the  mother's  property  directly 
to  her  father,  precisely  as  if  the  will  had  never  been  made. 

It  appears  that  notice  to  creditors  was  duly  published 
as  required  by  law  but  that  no  claims  have  been  presented 
against  the  estate  tho  the  time  therefor  has  long  since 
expired. 

It  is  accordingly  considered  and  decreed  that  all  claims 
against  the  above  entitled  estate  be  and  the  same  are  hereby 
barred ;  that  the  Executor  proceed  to  distribute  the  assets 
of  said  estate  to  the  father  of  the  deceased  and  that  upon 
the  filing  of  the  latter's  receipt  therefor  with  the  Clerk 
of  this  Court,  the  Executor  shall  stand  discharged  and  the 
administration  closed. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

In  re  Elmer  F.  Shanstrom's  Will. 

[Cause  No.  930;  filed  January  30,  1920.] 

SYLLABUS. 
(By  the   Court.) 

HOLOGRAPHIC  WILLS.  An  instrument  containing  words  written  by 
the  testator  himself,  sufficient  to  effect  a  valid  disposition  of 
his  property,  is  an  holographic  will  tho  it  also  contain  printed 
matter,  not  inconsistent  therewith,  and  tho  not  properly  attested. 

Lobingier,  J.: 

The  decedent's  widow  offers  for  probate  an  instrument 
which,  she  testifies,  bears  the  signature  of  decedent  and 
contains,  in  his  handwriting,  the  following  w^ords : 

"I  wish  all  of  my  effects,  etc.,  to  be  given  to  my  sister  Irene  Florence 
Shanstrom,   address    Coolidge,   Hamilton    Co.,    Kansas." 

These  word^  are  written  on  the  blank  portion  of  a  form 
of  will  containing  the  usual  introductory  and  subscription 


IN  RE  SHANSTROM'S  WILL,  JAN.  3  0,   1920.  939 

matter ;  but  the  instrument  purports  to  be  witnessed  by  one 
person  only  and  could  not,  therefore,  be  probated  as  an 
ordinary  will.^ 

We  have  held,-  however,  that  instruments  in  the  testator's 
handwriting,  tho  not  witnessed,  are  entitled  to  probate  as 
holographic  wills  and  the  sole  question  here  is  whether  the 
presence  in  the  same  instrument  of  the  printed  words  de- 
prives this  one  of  that  character.  On  that  point  the  ap- 
proved rule  seems  to  be  that  if  the  words  written  by  the 
testator  suffice  in  themselves  to  effect  a  valid  disposition 
of  his  property  the  instrument  is  none  the  less  an  holo- 
graphic will  because  it  contains  other  words,^  provided  they 
are  not  inconsistent  with  the  remainder  and  provided  also 
there  is  no  statute,  as  in  California  ',  requiring  otherwise. 
The  printed  words  of  the  instrument  before  us  are  not  only 
consistent  with,  but  supplementary  to,  the  language  of  the 
testator  which  is  quite  sufficient  to  show  his  intention  as 
to  the  disposal  of  his  entire  property.  Nor  is  the  failure 
of  the  instrument  to  name  an  executor  a  fatal  defect.'^ 

It  is  accordingly  considered  and  decreed  that  said  in- 
strument be  admitted  to  probate  as  the  Last  Will  and 
Testament  of  Elmer  F.  Shanstrom,  late  a  citizen  of  the 
United  States,  who  died  at  Shanghai,  China,  on  January 
10,  1920;  and  that  letters  of  administration  cum  testa- 
mento  annexo  issue  to  Neville  Craig,  Esq.,  as  petitioned  by 
decedent's  widow,  upon  the  former's  taking  the  oath  and 
executing  a  bond  in  the  sum  of  $400,  United  States  Cur- 
rency. 

'Act  of  Congress  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at 
Large,  Ch.  854,  sec.  1626;  Act  of  Congress  of  June  6,  1900,  Sess.  I, 
31  U.  S.  Stats,  at  Large,  Ch.  786,  Tit.  Ill,  sees.  138,  166. 

'In  re  Allen's  Will,  afite,  p.  92.  In  re  Lucy  Lucker's  Will,  aute, 
p.  626.  In  re  Kavanaugh's  Will,  ayite,  p.  842;  In  re  Amy  Bell's  Will, 
ante,  p.  893;  In  re  Alberta  C.  K.  Fitch's  Will,  ante,  p.  869;  In  re 
Derby's  Will,  ante,  p.  912. 

^  Heirs  of  McMichael  v.  Bankston,  24  La.  Ann.,  451;  Baker  v. 
Brown,  83  Miss.,  793,  36  So.,  539. 

^  Where  the  Civil  Code  defines  an  holographic  will  as  one  "entirely 
written"  by  the  testator.     Estate  of  Rand,  61  Gal.,  468. 

"'  In  re  Lucy  Lucker's  Will,  ante,  p.  626. 


940  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

SiAo  King  Kee,  Plaintiff,  v.  The  American  Trading  Com- 
pany (a  Corporation),  Defendant. 

[Cause  No.  675;  filed  February  24,  1920.] 

SYLLABUS. 
(By  the  Court.) 

1.  EQUITY:    MAXIMS.     "He  who  seeks  equity  must  do  equity"  is  one 

of  the  maxims  prerequisite  to  obtaining  equitable  relief  and  is 
applicable  equally  to  each  party  demanding  the  same. 

2.  Id. :   Reformation:   Grounds.     A  written  contract  which  fails,  by 

reason  of  mutual  mistake,  or  of  an  unilateral  one  induced  by 
representations  of  the  adverse  party,  to  ■express  the  real  agree- 
ment, will  be  reformed  accordingly. 

3.  Id.  :  Id.  :  Negligence  on  the  part  of  one  seeking  such  relief  is  not 

fatal  where  the  mistake  was  so   induced. 

4.  Id.:  Id.:  But  Relief  May  Be  Conditioned  upon  reimbursement  of 

the  adverse  party  for  losses  resulting  from  such  negligence, 
in  estimating  which  losses  not  all  the  rules  applicable  to  or- 
dinary damages  need  be  applied. 

Messrs.  Jernigan,  Fessenden  <&  Rose,  for  plaintiff. 
Messrs.  Fleming,  Davies  &  Bryan,  for  defendant. 

Lobingier,  J.: 

This  is  a  bill  in  equity  for  the  specific  performance  of  a 
written  contract  of  settlement  between  the  parties  and  for 
incidental  damages  resulting  from  delay  in  performance. 
The  answer  and  cross-bill  admits  the  execution  of  the  con- 
tract but  alleges  that  it  fails  correctly  to  express  the  real 
balance  agreed  upon  by  the  parties  by  reason  of  the  double 
crediting  to  plaintiff  of  an  item  of  Tls.  19,350  to  which  he 
was  concededly  entitled  on  account  of  a  certain  potash 
transaction  with  which 

"the  said  plaintiff,  through  his  agent  and  attorney,  knowingly  and 
falsely  or  by  virtue  of  a  mutual  mistake,  represented  to  Mr.  W.  A. 
Burns,  the  manager  for  the  defendant  in  Shanghai  that  he,  the 
plaintiff,   had   not  been   credited   on   the   said   account." 

It  is  further  alleged 

"That  defendant's  said  manager,  believing  said  representation,  then 
and   there  promised   and   agreed   to   deduct  said   sum   of   Tls.   19,350 


SIAO  KING  KEE  V.  TRADING  CO.,  FEB.  24,  1920.    941 

and  did  then  and  there  have  said  sum  of  Tls.  19,350  deducted  from 
said  account;  that  thereafter  a  statement  of  account  showing  the 
deduction  of  said  Tls.  19,350  from  said  balance  of  Tls.  43,762.53 
was  made  up  and  delivered  to  the  said  Siao  King  Kee  or  his  agents; 
and  that  said  redrafted  statement  of  account  as  made  up  and  so 
delivered  showed  a  balance  due  from  the  said  plaintiff  of  Tls. 
24,402.53;  that  thereafter  between  on  or  about  the  6th  day  of  April, 
1918,  and  the  29th  day  of  April,  1918,  it  was  arranged  by  and 
between  the  plaintiff  and  the  defendant  herein  that  the  defendant 
should  waive  the  sum  of  Tls.  4,402.53  of  said  balance  of  Tls.  24,402.53 
shown  to  be  due  on  said  redrafted  account  and  should  accept  the 
sum  of  Tls.  20,000  in  final  settlement  thereof." 

Defendant  prays  for  a  rescission  of  the  contract  and  for 
judgment  against  plaintiff  for  the  full  amount  of  the  orig- 
inal claim  less  an  item  of  Tls.  15,000  which  it  is  admitted 
has  been  paid.  The  replication  contains  a  general  denial  of 
the  averments  above  quoted  from  the  answer. 

It  appears  that  plaintiff  was  formerly  defendant's  "en- 
gineering compradore"  and  that  at  the  termination  of  the 
arrangement  defendant  held  him  liable  as  guarantor  of  a 
customer's  contracts  while  plaintiff  had  certain  claims 
against  defendant  for  commissions,  etc.  Under  date  of 
March  9,  1918,  a  statement  (Ex.  1)  of  an  account  ag- 
gregating Tls.  44,752.53  was  furnished  plaintiff  by  defend- 
ant and  this  statement  included  two  credit  items  for  potash 
aggregating  the  sum  of  Tls.  19,350.  According  to  the 
testimony  of  defendant's  agent  this  statement  was  brought 
to  him  four  weeks  later  by  plaintiff's  attorney  who  sug- 
gested a  compromise,  and  said   (pp.  3,  4) 

'*we  must  credit  Mr.  Siao  King  Kee  with  the  value  of  this  chlorate 
of  potash,  that  we  had  received  the  money  for  it  on   its  sale. 

Q.  Did  he  claim  that  you  had  not  credited  it? 

A.  Called  attention  to  the  fact  that  it  had  not  been  credited  and 
I  sent  for  Mr.  Manley  and  I  passed  this  account  to  him  asking  him 
to  credit  Mr.  Siao  King  Kee  at  the  value  fixed  by  the  Mixed  Court." 

This  testimony  as  to  the  statement  of  plaintiff's  attorney 
is  undisputed  and  is,  moreover,  corroborated  by  defendant's 
chief  accountant  who  says  that  the  agent  told  him  in  the 
attorney's  presence  that  the  latter  pointed  out  that  no  credit 
had  been  given  for  the  potash  and  that  a  new  statement 
should  be  prepared  accordingly.     Neither  the  agent  nor  the 


942  I  EXTRATERRITORIAL  CASES. 

accountant  seems  to  have  made  any  effort  to  verify  the  state- 
ment of  plaintiff's  attorney  and  the  account  v^as  handed  to 
a  Chinese  clerk  with  instructions  to  deduct  the  item  in 
question,  which  was  done,  and  the  contract  whose  perform- 
ance is  now  sought,  was  executed  on  that  basis  April  29. 
On  June  13  the  agent  left  Shanghai  and  in  July  the  ac- 
countant states  he  discovered  the  mistake  in  ascertaining  the 
maturity  of  a  note  which  plaintiff  gave  in  part  payment 
of  the  balance.  The  mistake  was  then  reported  to  defend- 
ant's counsel  who,  under  date  of  July  18,  wrote  a  letter 
pointing  out  and  explaining  it  to  plaintiff's  attorney  who 
replied  on  the  same  date  that  the  matter  had  been  referred 
to  his  client  for  instructions,  and  on  July  26  wrote  stating 
that  the  client  "absolutely  refuses  to  consider  the  matter" 
further  and  asking  that  the  terms  of  the  contract  be  carried 
out.  Nothing  more  having  been  done  this  suit  was  insti- 
tuted on  August  15,  1918. 

The  case  presented,  therefore,  is  reduced  to  this :  that  de- 
fendant's agent  and  accountant,  apparently  relying  upon 
the  statement  of  plaintiff's  attorney  that  the  item  in  ques- 
tion had  not  been  credited,  failed  to  verify  the  statement 
and  later  the  agent  signed  a  contract  agreeing  to  a  settle- 
ment on  the  theory  that  such  credit  had  not  been  given  when 
in  fact  it  had.  There  is  no  claim  in  any  quarter  that  it 
was  ever  defendant's  intention  to  allow  plaintiff  a  double 
credit  for  that  item.  What  the  parties  really  agreed  upon 
was  that  a  settlement  should  be  made  after  allowing  plaintiff 
certain  deductions  including  a  single  credit  of  the  amount 
for  potash  aggregating  Tls.  19,350.  Thru  the  mistake  of 
crediting  this  item  twice  the  written  contract  was  made  to 
express  an  amount  less  to  that  extent  than  defendant  in- 
tended. 

Plaintiff's  counsel  contends 

"that  the  account  which  has  been  referred  to  as  defendant's  Exhibits 
1  and  2  was  not  the  only  account  between  the  parties  which  was 
compromised  and  settled  by  the  agreement  of  April  29,  1918.  There 
were  other  accounts  and  plaintiff  had  several  large  claims  for  com- 
mission, etc.,  which  were  also  included  in  the  compromise  agree- 
ment.    *     *     *     The  Court  may  not  presume  that  the  plaintiff  would 


SIAO  KING  KEE  V.  TRADING  CO.,  FEB.  24,  1920.    943 

have  been  willing  to  settle  or  sign  this  contract  if  the  sum  to  be 
paid  had  been  Tls.  19,350  in  excess  of  Tls.  20,000  without  having  his 
claims  for  commissions  considered  and  adjusted." 

References  in  the  evidence  to  "small  commissions"  and 
"some  little  dispute  over  the  commissions"  are  then  cited 
but  none  regarding  "large  claims  for  commission."  That 
some  minor  claims  vi^ere  included  in  the  settlement  seems  to 
have  been  true,  as  noted  above,  but  that  these  in  any  way 
induced  the  double  crediting  of  the  potash  item  is  directly 
contrary  to  the  evidence.  Defendant's  agent,  who  is  un- 
contradicted, says: 

"Q.  No  one  ever  pointed  out  to  you  that  the  value  of  the  chlorate 
of  potash  had  been  credited  twice  in  the  account? 

A.  No. 

Q.  Did  you  intend  to  credit  it  twice? 

A.  No. 

Q.  Did  you  intend  to  make  Siao  King  Kee  an  allowance  of  Tls. 
19,350  at  the  time  you  had  that  credited  on  the  account  an  ad- 
ditional allowance  of  Tls.  10,350  over  and  above  the  allowance  of 
Tls.  17,200  and  Tls.  2,150  already  given? 

A.  No;  that  would  make  a  total  allowance  of  Tls.  38,000  or  Tls. 
39,000  on  an  account  that  totaled  only  Tls.  44,000." 

That  defendant  never  intentionally  agreed  to  such  a  set- 
tlement is,  therefore,  clear  and,  contrary  to  counsel's  con- 
tention, we  must  "presume"  that  plaintiff  did  not  or,  as 
an  alternative,  that  he  was  guilty  of  suggestio  falsi  or  at 
least  of  suppressio  veri. 

To  bring  this  case  within  the  doctrine  of  plaintiff's  prin- 
cipal authority  ^  (not  a  court  of  last  resort)  it  would  have 
been  necessary  that  defendant's  agent  should  have  made 
an  independent  offer  of  compromise,  uninfluenced  by  the 
representation  that  the  potash  item  had  "not  been  credited." 
For  the  gist  of  that  opinion  appears  to  be  found  in  the 
following  sentence: 

"When  plaintiff,  with  the  facts  before  him,  ended  the  matter  by 
saying  that  he  would  retire  if  he  were  paid  $100,  it  is  pretty  clear 
that  he  was  not  relying  upon   the   agreement  of   dissolution   or   the 

■  Dalpine  v.  Lume,  145  Mo.  App.,  549,  122  S.  W.,  776. 


944  I  EXTRATERRITORIAL  CASES. 

correctness   of   Mr.   Nasse's   figures,   but   was   making   an   offer   that 
can  bear  no  interpretation,  but  an  offer  of  compromise." 

Plaintiff  is  before  the  Court  seeking  equitable  relief  and 
one  of  the  prerequisite  maxims  -  in  that  forum  is  "He  who 
seeks  equity  must  do  equity" — a  maxim  which  has  peculiar 
application  to  cases  of  this  class.^  Moreover,  one  of  the 
recognized  branches  of  equity  jurisdiction  is  the  reforma- 
tion of  contracts  which  fail  to  express  the  intent  of  the 
parties.  Such  relief  is  regularly  granted  where  the  mistake 
is  mutual,'  and  in  contracts  of  settlement  no  less  than 
others.'  Here  we  must  assume  that  the  mistake  was 
mutual.  For  it  is  conceded  that  there  was  a  mistake  and 
as  plaintiff's  counsel  points  out  in  his  brief  "there  was  no 
evidence  introduced  by  the  defendant  to  prove  that  the 
plaintiff  personally  made,  or  procured  his  agent  to  make, 


^  See  the  writer's  article  "Equity,"  Am.  &  Eng.  Encyc.  of  Law 
(2nd  ed.),  XI,  157  et  seq. 

'  "There  are  few  cases  in  which  courts  of  equity  will  insist  on  the 
maxim  that  he  who  seeks  equity  must  do  equity,  with  more  rigor 
than  in  those  of  suits  for  specific  performance."  Eastman  v.  Plumer, 
46  N.  H.  464,  480.  See  also  Jones  v.  Dale,  16  Ontario,  717,  where  a 
portion  of  the  verbal  agreement  which  had  been  omitted  from  the 
written  one  was  inserted  over  plaintiff's  objection  in  the  decree 
for  specific  performance.  Cf.  Trigg  v.  Read,  5  Humph.  (Tenn.), 
529,  42  Am.  Dec,  447,  466,  cited  by  plaintiff. 

*  "The  reformation  of  written  contracts  for  fraud  or  mistake  is  an 
ordinary  head  of  equity  jurisdiction.  The  rules  which  govern  the 
exercise  of  this  power  are  founded  in  good  sense  and  are  well  settled. 
Where  the  agreement,  as  reduced  to  writing,  omits  or  contains  terms 
or  stipulations  contrary  to  the  common  intention  of  the  parties,  the 
instrument  will  be  corrected  so  as  to  make  it  conform  to  their  real 
intent.  The  parties  will  be  placed  as  they  would  have  stood  if  the 
mistake  had  not  occurred."  Swayne,  J.,  in  Hearne  v.  Insurance  Co., 
20  Wall  (U.  S.),  488,  22  L.  ed.,  395.  See  also  Brown  v.  Cranberry 
etc.  Co.,  82  Fed.,  361,  and  numerous  other  cases  cited  in  Cyc,  XXXIV, 
917,  note  87. 

'  Colorado.     Beck  v.  School  District,  54  Cok).,  546,  131  Pac,  398. 

Delaware.     McMullen  v.  Lockwood,  4  Del.,  Ch.  568. 

Maryland.     Gill  v.  Clagett,  4  Md.  Ch.,  470. 


SIAO  KING  KEE  V.  TRADING  CO.,  FEB.  24,  1920.    945 

any  'knowingly  false  representations.'  "  The  only  alterna- 
tive conclusion  is  that  the  mistake  was  mutual.*' 

But  not  all  the  authorities  require  mutuality  of  mistake  in 
order  to  justify  reformation.^  Especially  will  that  relief 
be  granted  where  the  mistake,  tho  unilateral,  is  induced  by 
the  representations  ®  or  even  silence  '  of  the  adverse  party. 
Such  representations  may  even  be  innocent;^"  tho  in  such 
case  there  is  clearly  a  mutual  mistake.  But  it  suffices  if 
the  representations  were  believed  and  acted  upon  by  the  one 
seeking  relief. 

Great  stress  is  laid  in  plaintiff's  argument  upon  the  neg- 
ligence of  defendant's  agents  in  failing  to  verify  from  their 

'  Brown  v.  Cranberry  etc.  Co.,  82  Fed.  351.  See  James  v.  Cutler, 
54  Wis.  172,  10  N.  W.  147. 

'  Federal.  "I  do  not  understand  that  in  such  a  case  as  we  have 
here  it  is  essential  that  the  mistake  be  mutual."  Cochran,  J.,  in 
Armour  &  Co.  v.  Renaker,  191  Fed.  58,  repeated  in  202  Fed.  901,  904. 

California.  "It  is  not  necessary  that  a  mistake  of  fact  should  be 
mutual,  as  appellant  claims."  Moore  v.  Copp,  119  Cal.  429,  51  Pac. 
630;   Capelli  v.  Dondero,  123  Cal.  324,  55  Pac.  1057. 

Connecticut.     Essex  v.    Day,  52    Conn.   483,   1   Atl.   620. 

Iowa.  Turpin  v.  Gresham,  106  Iowa  187,  76  N.  W.  680,  and  other 
Iowa   cases   there   cited. 

"Nebraska.  Blair  v.  Kingman  Implement  Co.,  82  Neb.  344,  117  N. 
W.  773. 

Neiv  Jersey.  Chelsea  Nat.  Bank  v.  Smith,  74  N.  J.  Eq.  275,  69 
Atl.  533. 

North  Carolina.     Sykes  v.  Life  Ins.  Co.,  148  N.  C.  13,  61  S.  E.  610. 

Ohio.     Harris  v.  Columbiana  Co.,  18  Ohio  116,  51  Am.  Dec.  448. 

Pennsylvania.  Renshaw  v.  Cans,  7  Pa.  St.  117;  Tyson  v.  Passmore, 
2  Pa.  St.  122. 

Tennessee.     Graham  v.  Guinn,  43   S.  W.  749. 

Wisconsin.      James  v.  Cutler,  54  Wis.  172,  10  N.  W.  147. 

And  see  other  cases  cited  in  Cyc.  XXXIV,  922,  note  20;  Pomeroy, 
Equity  Jurisprudence    (3rd.  ed.)    IV,  sec.  1376. 

'Hume  V.  U.  S.,  132  U.  S.  406,  33  L.  ed.  393;  Armour  &  Co.  v. 
Renaker,  202   Fed.   901. 

"  Tyson  v.  Passmore,  2  Pa.  St.  122.  Cf.  Higgins  v.  Parsons,  65  Cal. 
280,  3  Pac.  881. 

14008   O.    W. 60 


946  I  EXTRATERRITORIAL  CASES. 

own  books  the  state  of  plaintiff's  account  and  authorities  " 
are  cited  to  the  effect  that  negligence  will  bar  relief  on  the 
ground  of  mistake.  This  principle  is  well  recognized  where 
it  operates  alone  and  were  there  no  qualifying  circumstances 
here  it  would  probably  be  sufficient  to  preclude  the  award 
of  relief  to  defendant.  But  in  none  of  the  authorities  relied 
upon  by  plaintiff  was  there  a  representation  by  the  adverse 
party  which  induced  the  mistake  and  therein  we  think  is 
the  determining  point  in  the  case  at  bar.  Had  defendant 
made  the  mistake  by  itself  alone  it  would  have  no  claim  to 
equitable  relief.  But  when  it  fell  into  the  mistake  by 
following  a  statement  of  plaintiff's  representative  its  neg- 
ligence is  excused  ^-  to  the  extent  at  least  of  entitling  it  to 

"Federal.  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  ed.  798;  Mont- 
gomery V.  City  Council,  99  Fed.  825,  830. 

Alabama.  Porter  v.  Collins,  90  Ala.  510,  8  So.  80;  Carlisle  v. 
Barker,  57  Ala.  267. 

California.     Lestrade  v.  Barth,  19  Cal.  660. 

Kansas.     Brooks  v.  Hall,  36  Kan.  697,  14  Pac.  236. 

Kentucky.  Drakesboro  etc.  Co.  v.  Brashears,  144  Ky.  39,  137  S. 
W.  765. 

Michigan.     Brevoort  v.  Partridge,  156  Mich.  359,  120  N.  W.  803. 

New   York.     Marvin  v.  Bennett,  26  Wend.  169. 

Virginia.   Solenberger  v.  Strickler's  Adm'r.,  110  Va.,  273,  65  S.  E.  566. 

''Federal.  Hume  v.  U.  S.,  132  U.  S.  406,  33  L.  ed.  393;  Standard 
Oil  Co.  V.  Van  Etten,  107  U.  S.  325,  27  L.  ed.  319;  Brown  v.  Cranberry 
etc.  Co.,  82  Fed.  351;  Baxter  v.  Card,  59  Fed.  165.  All  of  the  above 
were  subsequent  to  Slaughter  v.  Gerson,  13  Wall.  379,  20  L.  ed.  627, 
cited  by  plaintiff,  and  followed  in  Farnsworth  v.  Duffner,  142  U.  S. 
43,  L.  ed.  981  and  cases  there  cited,  in  all  of  which  complaint  was 
made  rather  of  expressions  of  opinion  than  of  statements  of  fact. 
"A  broad  principle,"  as  Page  puts  it,  "is  laid  down"  in  some  of  them  but 
in  none  was  there  such  a  misrepresentation  of  fact  acted  upon  as  here. 

California.  Moore  v.  Copp,  119  Cal.  429,  51  Pac.  630;  Union 
Lumber  Co.  v.  Schouten  Co.,  25  Cal.  App.  142  Pac.  910. 

Connecticut.     Essex  v.  Day,  52  Conn.  483,  1  Atl.  620. 

Nebraska.  North  Neb.  etc.  Ass'n.  v.  Box,  57  Neb.  302,  77  N.  W. 
770;  Leidigh  v.  Keever,  2  Neb.   (Unoff.)   343,  96  N.  W.  106. 

Texas.     Mine  etc.  Co.  v.  Creel,   (Tex.  Civ.  App.)    79  S.  W.  67. 

Washington.     Russell  &  Co.  v.  Stevenson,  34  Wash.  166,  75  Pac.  627. 

West  Virginia.  Harman  v.  Maddy,  57  W.  Va.,  66,  decided  after 
Ludington  v.  Renick,  7  W.  Va.,  273,  cited  by  plaintiff,  where  there 
was  no  such  representation  as  here. 


SIAO  KING  KEE  V.  TRADING  CO.,  FEB.  24,   1920.         947 

have  the  contract  reformed  so  as  to  read  as  defendant  cer- 
tainly intended  and  as  plaintiff  must  be  assumed  to  have 
intended. 

We  also  think  that  the  above  meets  the  contention  '^  that 
want  of  negligence  should  have  been  pleaded.  As  we  have 
seen,  the  answer  alleges  a  mutual  mistake  and  representa- 
tions by  the  adverse  party  and  such  averments  alone  are 
a  sufficient  basis  for  relief  under  the  law  as  already  stated. 

Nor  do  we  think  that  the  fact  that  defendant's  chief 
accountant  "prepared  the  basis  upon  which"  the  original- 
statement  (Ex.  1)  "was  to  be  made  out,"  and  which  included 
credit  for  the  potash  item,  deprives  defendant  of  its  right 
to  relief.  He  states  (p.  28)  that  he  "didn't  go  into  the 
details  at  all"  and  as  he  seems  to  have  left  the  actual  prep- 
aration of  statements  to  a  Chinese  clerk  he  was  justified  in 
thinking,  on  learning  thru  plaintiff's  attorney  that  the 
potash  item  had  "not  been  credited,"  that  the  clerk  had 
made  an  error.  The  absence  of  such  a  representation  in 
the  cases  ^*  cited  by  plaintiff  on  this  point  clearly  of  itself 
distinguishes  them  from  that  at  bar. 

But  it  does  not  follow  that  the  defendant  is  entitled  to 
the  relief  specifically  prayed  for  which  is,  as  we  have  seen, 
a  rescission  of  the  contract  and  a  judgment  for  the  amount 
of  its  original  claim.  As  we  view  the  evidence  the  case 
calls  for  nothing  more,  in  defendant's  behalf,  than  a  refor- 
mation. In  effect  what  defendant  claims  is  that  a  contract 
of  settlement  was  agreed  upon  by  which  certain  deductions 
were  made  from  its  claim  including  a  single  credit  of  Tls. 
19,350,  while  the  written  contract  by  mistake  included  a 
double  credit  of  that  item.  Clearly  then  the  relief  to  which 
it  is  entitled  is  the  remission  of  one  of  those  credits. 

"^Hughey  v.  Smith,  65  Or.  323,  133  Pac.  68;  Lewis  v.  Lewis,  5  Or. 
169.  Both  of  these  cases  were  disposed  of  on  demurrer  and  there  is 
nothing  to  indicate  that  had  the  defendant  answered  instead  of  de- 
murring and  had  evidence  been  received  as  here  without  objection, 
a  decree  would  have  been  denied. 

"Dewey  v.  Whitney,  93  Fed.  533  (affirming  85  Fed.  325);  Pickett 
V.  Casualty  Co.,  60  S.  Car.  477,  38  S.  E.  160,  629. 


948  I  EXTRATERRITORIAL  CASES. 

II. 

In  the  interlocutory  decree  we  further  said : 

"Any  damage  which  plaintiff  may  have  suffered  by  defendant's  delay 
in  discovering  the  mistake  and  invoking  relief  w^ould  appear  to  be  not 
only  a  proper  item  of  deduction  as  against  further  payments  but  also 
included  within  the  prayer  of  the  bill.  In  other  words  while  the 
negligence  here  shown  is  not  sufficient  to  bar  all  relief  it  should  not 
on  the  other  hand  be  permitted  to  cause  a  loss  to  the  plaintiff  who 
at  any  rate  was  not  responsible  for  defendant's  delay  of  three  months 
in  moving.  The  maxim  'He  who  seeks  equity  must  do  equity'  applies 
to  defendant '''  equally  as  to  plaintiff  as  each  party  seeks  equitable 
relief  and  neither  is  entitled  to  it  at  the  other's  expense.  And  even 
were  defendant  otherwise  entitled  to  i-escission  it  would  be  within  the 
power  of  the  Court  to  allow  plaintiff  to  take  what  defendant  intended 
to  give." '" 

As  the  parties  failed  to  agree  on  this  point  further  evi- 
dence was  taken.  Plaintiff  testifies  (2nd  trans,  p.  2  et  seq.) 
that  on  June  26  (which  was  nearly  a  month  before  he  was 
notified  of  the  mistake)  he  entered  into  a  contract  to  sell 
for  Tls.  14,000  the  lot  whose  title  deed  defendant  had  con- 
tracted to  surrender,  and  which  was  mortgaged  for  Tls. 
11,000,  giving,  as  a  forfeit  for  failure  to  convey,  the  sum 
of  Tls.  2,000;  that  defendant  by  refusing  to  deliver  the  deed 
or  authorizing  the  transaction  blocked  the  sale  and  that 
plaintiff  lost  the  forfeit  of  Tls.  2,000  as  well  as  the  profit  of 
Tls.  3,000. 

Defendant's  counsel  assails  the  genuineness  of  the  trans- 
action contending  that  the  witnesses  were  unable  to  describe 
sufficiently  the  place  where  it  was  made.  But  they  were 
examined  over  a  year  (in  part  a  year  and  a  half)  later 
and  it  would  not  be  strange  if  many  of  the  details  had 
meanwhile  been  forgotten.  Both  the  contract  and  the 
payment  of  the  forfeit  are  evidenced  by  various  documents 
(Ex.  E-N)  and  plaintiff  is  corroborated  by  the  alleged  pur- 
chaser while  no  one  contradicts  plaintiff  on  the  essential 
points. 

The  claim  is  also  assailed  upon  legal  grounds — that  as 
plaintiff  was  not  entitled  to  unqualified  specific  performance 


"See  "Equity,"  Am.  &  Eng.  Encyc.  of  Law   (2nd  ed.)   XI,  159. 
'"  See  cases  cited  in  Cyc.  XXXIV,  918,  note  90  last  paragraph. 


SIAO  KING  KEE  V.  TRADING  CO.,  FEB.  24,   1920.         949 

he  could  not  recover  damages ;  that  those  claimed  were  not 
in  contemplation  of  the  parties;  and  that  the  forfeiture 
suffered  -by  plaintiff  was  in  the  nature  of  a  penalty  and, 
therefore,  unnecessarily  paid. 

All  of  these  principles  might  apply  were  we  considering 
plaintiff's  rights  in  the  first  instance  unaffected  by  defend- 
ant's conduct.  But  the  damages  which  we  are  seeking  to 
estimate  are  merely  those  resulting  from  defendant's  neg- 
ligence in  not  moving  earlier  for  relief,  and  at  least  the 
first  two  of  the  propositions  noticed  above  are  hardly  ap- 
plicable to  such  a  case.  Damages  are  to  be  allowed  not 
merely  as  an  incident  to  specific  performance  but  to  com- 
pensate for  negligence  and  the  question  is  not  whether 
they  were  contemplated  by  the  parties  when  they  made 
their  contract  but  whether  they  resulted  directly  from 
the  negligence.  And  while  it  is  true  that  the  Chinese 
word  was  often  translated  "penalty" — tho  elsewhere  "fine" 
(p.  15)  and  "forfeiture"  (p.  16) — it  is  undisputed  that  such 
a  clause  is  a  usual  one  in  Chinese  contracts  (3d  trans.,  8) 
and  it  will  hardly  be  claimed  that  either  of  the  parties  to 
that  transaction  understood  it  in  the  sense  of  the  American 
law  of  penalties  and  liquidated  damages. 

Defendant  has  already  remitted  the  sum  of  Tls.  2,500, 
and  has  offered  specifically  to  perform  upon  the  payment  of 
the  amount  found  due  it  after  deducting  said  item.  Con- 
sidering that  we  are  here  concerned  with  the  conditions 
upon  which  defendant  is  granted  equitable  relief  rather  than 
with  an  independent  claim  for  damages,  we  should  not  be 
too  technical  in  applying  either  the  evidence  or  the  law; 
and  we  are  of  the  opinion  that  we  should  allow  an  additional 
item  of  Tls.  2,500  making  in  all  Tls.  5,000  as  claimed  in 
the  bill  and  which  would  offset  the  item  admitted  in  the 
reply  to  be  due  from  plaintiff. 

The  motion  to  modify  the  interlocutory  decree  is  accord- 
ingly overruled  and  it  is  further  considered  and  decreed 
that  upon  paying  defendant  the  sum  of  Tls.  19,350  plaintiff 
shall  have  specific  performance  of  said  reformed  contract, 
including  the  return  of  Title  Deed  No.  1398,  deposited  with 
it  under  the  terms  thereof,  together  with  his  costs;  but 


950  I  EXTRATERRITORIAL  CASES. 

that  in  case  plaintiff  fail,  for  a  period  of  thirty  days,  to 
make  such  payment  (he  having  expressly  submitted  him- 
self to  the  jurisdiction  of  this  court  and  agreed  to  abide 
by  its  judgment)  defendant  will  be  entitled  to  recover  from 
him  the  said  sum  of  Tls.  19,350,  upon  delivering  to  him 
said  Title  Deed  No.  1398,  but  to  retain  said  deed  until  the 
payment  of  said  sum. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  Assignment  of  A.  S.  Fobes. 

[Cause  No.  445;  filed  February  28,  1920.] 

SYLLABUS. 
(By  the  Court.) 

1.  ASSIGNMENTS  FOR  CREDITORS.     The  Voluntary  Assignment  Act  of 

Congress  is  "necessary  to  execute  the  treaties"  with  China  and 
"suitable"  to  this  jurisdiction  and  its  application  here  is  un- 
affected by  the  Bankruptcy  Act  of  1898. 

2.  CONTRACTS:    PAROL   EVIDENCE   Rule.     A  promissory  note  payable 

"without  interest"  cannot  be  contradicted  by  evidence  of  a  con- 
temporaneous agreement  for  interest. 

3.  Id.  :   Estoppel.     In  the  absence  of  any  suggestion  of  fraud  the  ac- 

ceptance of  such  an  instrument  is  unaffected  by  the  payee's 
inability  to  read  the  language  in  which  it  is  written. 

LOBINGIER,  J.: 

This  is  a  proceeding  under  the  Voluntary  Assignment  Act 
of  Congress,  which,  having  been  reenacted  ^  after  the  pass- 
age of  the  Bankruptcy  Act  of  1898,  is  unaffected  by  the 
latter's    provisions.-     An    assignment    act    seems    "neces- 


'  Act  of  March  3,  1901,  Sess.  II,  31  U.  S.  Stats,  at  Large,  Ch.  854, 
sees.  435-444  (embodying  Act  of  Feb.  24,  1893,  27  U.  S.  Stats,  at 
Large,  Sess.  II,  Ch.  157,  p.  474)  as  amended  by  Act  of  June  30, 
1902,  32   U.   S.    Stats,   at   Large,   sess.    I,    Ch.    1329,   p.   530. 

The  original  act  was  taken  from  the  Illinois  statute  and  is  inter- 
preted in  accordance  with  the  decisions  of  that  state.  Strasburger 
V.    Dodge,   12   App.    Cas.    (D.    C.)    48. 

'  As  the  Assignment  Act  contains  no  provision  for  the  debtor's 
release  it  would  not,  even  if  merely  a  state  law,  be  displaced  by  the 
Bankruptcy   Act.     See   Corpus   Juris,   VII,   24,  25. 


IN  RE  ASSIGNMENT  OF  FOBES,  FEB.  28,  1920.  951 

sary"  ^  to  the  proper  execution  of  the  treaties  and  the  law 
in  question  is  a  "suitable"  *  one,  being  simpler  and  less 
expensive  in  its  application  than  the  Bankruptcy  Act.  The 
former  may,  therefore,  be  applied  here  at  least  until  its 
procedural  provisions  have  been  modified  and  supplemented 
by  the  Judge  of  this  court.  It  requires  no  judicial  action, 
except  when  it  becomes  necessary  to  appoint  some  one 
in  place  of  the  assignee,  until  each  of  the  various  claims 
has  been  presented  to,  and  proved  before,  the  auditor  and 
he  has  reported  thereon. 

In  this  proceeding  the  auditor,  under  date  of  February 
17,  reported  on  all  but  one  (which  had  previously  been 
reported  and  paid  as  preferred)  of  the  claims  "of  which" 
he  states  "any  proof  has  been  produced  by  document,  oral 
testimony  or  affidavit."  Allowance  of  all  claims  except  one 
is  recommended  and  as  to  that  no  recommendation  is  made 
except  that  another  auditor  be  appointed.  But  as  the 
evidence  thereon  was  taken  before  him  (a  counter  showing 
being  afterward  made  by  the  debtor)  and  as  the  statute 
prescribes  no  other  function  for  the  auditor,  we  see  no 
reason  why  this  evidence  should  not  now  be  examined 
and  the  claim  determined  therefrom,  so  far  as  possible, 
leaving  the  assignee  to  make  such  further  verification  as 
may  be  necessary. 

The  claimant,  Siao  King  Kee  (Ev.,  pp.  2,  5),  formerly 
the  debtor's  compradore,  and  the  latter  (Ex.  B)  both  ap- 
pear to  agree  that  on  December  31,  1907,  the  latter  owed 
the  former  Tls.  37,577.70,  which  was  thereupon  reduced 
by  a  separate  obligation  reading  as  follows: 

"For  the  value  received  I  promise  to  pay  Shou  Shin  Kee  or  his 
order  the  sum  of  Taels  Thirty  Thousand  without  interest,  on  demand 
or  as  soon  and  as  fast  as  payment  can  be  made  as  business  op- 
portunity  may   permit. 

(Sgd.)     A.   S.  FoBES.'' 

The  claimant  testifies  that,  notwithstanding  the  words 
"without  interest"  in  this  instrument,  the  debtor  "at  the 
time  promised  verbally  that  he  would  pay  interest."  But 
such  a  verbal  promise,  if  made,  would  have  merged  in  the 

'  U.  S.  Rev.  Stats.,  sec.  4086.  *  Id. 


952  I  EXTRATERRITORIAL  CASES. 

written  one  which,  not  being  ambiguous,  or  incomplete,  is 
subject  to  no  contradiction  or  variation  by  parol  evidence.' 

The  claimant  further  states  that  he  does  not  read  English 
and  that  he  did  not  discover  until  "about  one  year  after- 
wards" that  the  debtor  "was  not  going  to  pay  interest." 
But  it  seems  quite  improbable  that  he  would  have  accepted 
for  so  large  a  sum  an  obligation  written  in  a  language 
which  he  did  not  understand  and  have  waited  a  year  before 
ascertaining  its  terms.  Besides  he  does  not  claim  that  the 
contents  of  the  document  were  ever  misstated  to  him  and 
in  the  absence  of  such  misstatement  he  would  have  no 
ground  for  avoiding  it.'' 

On  the  other  hand  the  debtor  states  under  oath : 

"He  (the  claimant)  agreed  to  relieve  me  of  monthly  interest  on 
30,000  taels,  in  consideration  that  I  would  allow  him  an  Extra  Tls. 
3,000  to  be  added  to  the  sum  of  Tls.  34,577  (admittance  by  Shou; 
see  his  testimony  top  of  page  5)  owing  to  him  at  Dec.  31,  1907, 
for  what  he  claimed  was  due  him  for  extra  interest  which  he  had 
had  to  disburse  and  the  further  consideration  that  /  would  not  hold 
him  responsible  for,  or  fake  any  action  against  him  for,  losses  sus- 
tained thru  the  mismanagement  as  hereinbefore  mentioned  and 
for  xvhich  under  the  terms  of  the  agreement  of  May  1903'  he  was 
liable.     *     *     * 

The  fact  that  balance  Tls.  30,000  was  to  bear  no  interest  is  set 
forth  in  the  records  of  Shou's  own  Cash  Book — kept  by  him  in 
English  which  cash  book  checked  up  month  by  month  in  conformity 
with  the  firm  Cash  Book." 

The  debtor  is  a  more  disinterested  witness  than  the  claim- 
ant ;  for  the  former,  having  assigned  all  his  property  to  his 
creditors,  has  nothing  to  expect  from  the  apportionment 
thereof.  Moreover,  while  the  books  do  not  seem  to  have 
been  produced  before  the  auditor  the  cash  book  can  be  veri- 
fied by  the  assignee  and,  if  bound  to  corroborate  the  state- 
ment last  quoted,  would  seem  to  be  conclusive  in  requiring 
the  rejection  of  the  claim  for  interest  on  the  item  of  Tls. 
30,000. 

The  debtor  further  states  that  the  books  kept  by  or 
under  the  claimant  disclose  (Ex.  C)  credits  on  that  item 
amounting  to  Tls.  15,551.99  and   (Ex.  D)   payment  of  the 

'17  Cyc.  475;  Page,  Contracts,  sec.  1356. 

'  See  Meier  v.  Arkell  &  Douglas,  ante,  p.  907,  note  4. 


IN  RE  ASSIGNMENT  OF  FOBES,  FEB.  28,  1920.  953 

unsecured  balance  of  the  account  amounting  to  Tls.  7,577.70. 
These  appear  to  be  corroborated  by  the  claimant's  original 
statement  of  indebtedness  and  are  likewise  easily  verifiable 
by  the  assignee. 

There  are  also  claims  for  Tls.  7,000,  ''American  Sheet- 
ing loan  July  25,  1907,"  for  which  it  is  admitted  there  is 
no  written  evidence,  and  which  it  would  seem  should  have 
been  mentioned  in  the  balance  struck  on  December  31  of 
the  same  year  had  it  then  been  recognized  as  valid.  Another 
claim  is  for  Tls.  12,760,  described  as  commission  on  flour 
mills.  Both  of  these  are  positively  denied  by  the  debtor  and 
there  is  no  sufficient  evidence  to  justify  their  allowance. 

The  debtor,  in  the  balance  sheet  annexed  to  the  assign- 
ment, sets  forth  a  balance  due  this  claimant  of  Tls.  15,125.36 
and  if  the  assignee  finds  that  the  books  kept  by,  or  under 
the  supervision  of,  the  claimant  corroborate  the  debtor  in 
the  particulars  above  quoted  he  is  instructed  to  consider 
said  sum  as  the  proper  amount  of  said  claim. 

The  auditor  recommends  that  the  following  be  allowed  as 
general  claims: 

Wenatchee  Milling  Company  for  G.  $4,293.49. 
Carter's   Ink   Company  for   G.    $2,051.73. 

It  is  finally  recommended  that  the  claim  of  the  Dentists' 
Supply  Company  for  G.  $691.20,  for  goods  delivered  to  the 
debtor  for  sale  on  consignment,  be  allowed  as  a  preferred 
claim,  the  title  never  having  passed  to  the  debtor. 

The  Assignee  makes  a  claim  of  5%  on  the  amount  col- 
lected and  received  in  the  course  of  the  assignment  proceed- 
ings, out  of  which  commission  he  undertakes  to  defray  the 
expenses  of  auditing  and  clerical  help. 

Unless  formal  objection  by  some  creditor  to  these  claims 
and  recommendations  is  filed  with  the  clerk  of  this  Court 
on  or  before  April  1,  1920,  they  will  be  considered  as 
allowed  and,  after  deducting  the  necessary  expenses  of  the 
assignment,  the  assignee  is  directed  to  distribute,  subject 
to  the  instructions  above  given,  the  debtor's  funds  in  his 
hands  in  proportionate  payment  pro  tanto  of  the  claims 
which  by  said  date  have  been  presented  to  and  proved 
before  the  auditor. 


954  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Edward  Ezra,  Plaintiff,  v.  American  Sales  Corporation, 

Defendant. 

[Cause  No.  904;  filed  March  2,  1920.] 
SYLLABUS. 

(By  the  Court.) 

1.  CONTRACTS:    FoRM.     A    contract    is    none    the    less    "entered    into 

*  *  *  by  correspondence"  because  of  the  transmission  by  one 
party  to  the  other  of  a  blank  form  which  the  latter  fails  to 
sign. 

2.  Id.:  An  Agent  who  fails  to  disclose  his  principal's  name  in  making 

a  contract  becomes  liable  individually  thereon. 

3.  Id.  :   Advance  Payments  to  such  agent  on  the  purchase  price  of 

goods  may  be  recovered  back  from  him,  in  case  of  non-delivery, 
with  interest  at  eight  per  cent. 

4.  PLEADING:    EVIDENCE.     Under  a   general   denial,  in   an   action   for 

such  recovery,  defendant  may  show  that  the  contract  was  dif- 
ferent from  that  alleged. 

5.  Id.  :    Admissions.     But    such    a    denial    leaves    admitted    an    aver- 

ment  of   defendant's   corporate   capacity. 

Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Bryan,  for 
plaintiff. 

Messrs.  Jernigan,  Fessenden  &  Rose,  by  Mr.  Rose,  for 
defendant. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  back  Tls.  1,123.88  being  the 
purchase  price  of  certain  lavatory  supplies  ordered  by  plain- 
tiff from  the  defendant  but  never  delivered  by  reason  of 
their  non-arrival  in  Shanghai.  The  material  facts  are  not 
seriously  disputed  tho  the  answer  denies  plaintiff's  averment 
that  the  parties  "entered  into  a  contract  by  correspondence." 
Defendant's  theory  seems  to  be  that  the  contract  was  really 
evidenced  by  a  printed  form  (Ex.  1)  which  defendant's  pres- 
ident claims  to  have  furnished  plaintiff,  stating  the  items 
of  goods  delivered  and  containing  inter  alia  this  clause: 

"It  is  understood  that  The  American  Sales  Corporation  act  as 
Manufacturers'  Agents;  all  risk  of  shortage,  damage,  strikes,  steamer 


EZRA  V.  AMERICAN  SALES  CORP.,  MAR.  2,  1920.  955 

shutting  out,  and  late  arrival  or  other  contingencies  the  buyer  has  to 
accept.  In  the  event  of  wrong  or  faulty  execution,  The  American 
Sales  Corporation  undertake  to  lay  the  complaint  before  the  Manu- 
facturers, with  the  view  of  an  adjustment  of  same,  but  accept  no 
responsibility  in  connection  therewith." 

Plaintiff's  counsel  contends  that  this  instrument  was 
inadmissible  under  defendant's  general  denial  and  cannot 
be  considered.     But  the  rule  is  that 

"Under  a  general  denial  the  defending  party  is  always  at  liberty 
to  disprove  and  overthrow  the  contract  asserted  against  him  by 
proving  that  it  was  materially  different  from  the  one  so  asserted." ' 

In  this  instance,  however,  it  is  admitted  that  plaintiff 
never  signed  the  instrument  and  since  the  general  denial 
admits  defendant's  corporate  capacity  -  the  proof  clearly 
supports  plaintiff's  averment  that  the  contract  was  "entered 
into  *  *  *  i^y  correspondence"  and  it  contained  no 
such  exemption  as  that  above  quoted. 

Moreover  there  is  no  evidence  that  defendant  ever  dis- 
closed to  plaintiff  the  name  of  any  one  for  whom  it  was 
acting  as  agent.  It  appears  that  the  order  was  based  upon 
an  illustrated  catalog  but  plaintiff  states,  and  he  is  not 
contradicted,  that  the  name  of  the  house  issuing  the  catalog 
had  been  cut  out.  The  rule  is  well  settled  that  where  a 
party  enters  into  a  contract  in  his  own  name  he  is  indivi- 
dually liable  thereon  tho  in  fact  he  is  merely  the  agent  of 
another  whose  name  he  fails  to  disclose.^  Even,  therefore, 
had  it  been  the  case  here  that  defendant  was  the  "manu- 
facturer's agent"  its  failure  to  disclose  the  name  of  its  prin- 
cipal rendered  it  liable  the  same  as  if  it  had  contracted 
exclusively  in  its  own  name. 

The  consideration  for  plaintiff's  payment  having  failed, 
and  defendant  not  being  entitled  to  retain  the  same,  plain- 

'  Wilkerson  v.  Farnham,  82  Mo.  679.  See  also  Blizzard  v.  Ap- 
plegate,  61  Ind.  368;  Marsh  v.  Dodge,  66  N.  Y.  533;  Wheeler  v. 
Billings,  38  N.  Y.  263. 

'Cyc.  XXXI,  207    (note  26). 

•Anson,  Contracts  (Huffcutt's  2nd  Am.  ed.)  sec.  446.  Compare 
Nash  V.  Towne,  5  Wall   (U.  S.)   689,  18  L.  ed.  527. 


956  I  EXTRATERRITORIAL  CASES. 

tiff  is  entitled  to  judgment  therefor/  The  petition  also 
asks  for  $300  as  damages,  but  no  proof  was  offered  in  behalf 
of  this  claim.  Plaintiff  is  entitled,  however,  to  interest  on 
the  amount  of  his  payment  from  the  date  thereof  at  the  rate 
of  S%  per  annum. ^ 

It  is  accordingly  considered  and  adjudged  that  plaintiff 
have  and  recover  from  defendant  the  sum  of  $1,123.88 
with  interest  thereon,  at  8%  per  annum  from  March  26, 
1919,  together  with  his  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
Zee  Foh  Sung,  Plaintiff,  v.  Frank  Fernandez,  Defendant. 

[Cause  No.  846;  filed  March  8,   1920.] 

SYLLABUS. 

(By  the  Court.) 

1.  CONTRACTS:    COURTS  will   not  make  contracts   for   parties   nor   in- 

quire into  the  wisdom  or  advisability  of  their  undertakings. 

2.  Id.  :    Guaranty.     The  language   of   a   guaranty   is   construed  most 

strongly  against  the  guarantor. 

3.  Id.  :  A  Continuing  Guaranty  does  not  require  notice  to  the  guar- 

antor of  each  item  of  credit  extended;  a  general  notice,  within 
a  reasonable  time  after  the  whole  transaction  is  closed,  suffices. 

4.  Id.  :    Acceptance  of  a  guaranty,  and   notice  thereof,  are  effected 

where  both   creditor   and   guarantor  sign   the   written   contract 
which    embodies    it. 

5.  Id.  :   A  Voluntary  Payment  must  be  applied  in  accordance  with 

the  debtor's  intention. 

Messrs.  Jernigan,  Fessenden  &  Rose,  by  Mr.  Rose,  for 
plaintiff. 

Paul  Myron  Linebarger,  Esq.,  for  defendant. 

*  Federal.  "Assumpsit  for  money  had  and  received  is  an  equitable 
action  to  recover  back  money  which  the  defendant  in  justice  ought 
not  to  retain,  and  it  may  be  said  that  it  lies  in  most,  if  not  all, 
cases  where  the  defendant  has  moneys  of  the  plaintiff  which,  ex 
aequo  et  bono,  he  ought  to  refund."  Nash  v.  Towne,  5,  Wall.  889, 
18  L.  ed.  527. 

Indiana.     Sandage  v.  Manufacturing  Co.,  142  Ind.  148,  41  N.  E.  380. 

Wisconsin.     Woodle  v.  Whitney,  23  Wis.  55,  99  Am.  Dec.  102. 

'  Act  of  Congress  of  June  6,  1900,  31  U.  S.  Stats,  at  Large,  sess.  I, 
Ch.  786,  tit.  Ill,  sec.  255;  Woodle  v.  Whitney,  23  Wis.  59,  99  Am. 
Dec.  102. 


ZEE  FOH  SUNG  V.   FERNANDEZ,  MAR.   8,    1920.  957 

LOBINGIER,   J.: 

This  is  an  action  on  a  written  agreement  by  which  de- 
fendant sublet  to  plaintiff  all  of  the  Continental  Hotel, 
Shanghai,  of  which  defendant  was  then  the  proprietor,  ex- 
cept the  bar  and  certain  bed  rooms  occupied  by  the  latter. 
The  agreement  contains  the  following  clause  which  is  the 
only  one  here  in  dispute: 

"The  Lessor  shall  have  the  right  to  collect  and  receive  on  behalf 
of  the  Lessee  any  and  all  moneys  due  to  the  Lessee  for  any  refresh- 
ment, boarding,  or/and  lodging  which  the  Lessor  shall  have  supplied 
on  behalf  of  the  Lessee  to  any  person  or/and  persons;  he  shall  hand 
over  to  the  Lessee  any  and  all  moneys  in  cash  as  soon  as  he  collects 
and  receives  them  in  cash.  He  is  not  permitted  to  retain  in  his 
possession  any  and  all  moneys  due  and  belonging  to  the  Lessee  nor 
to  make  any  personal  use  of  them.  If  any  chits  shall  not  be  paid  for 
in  cash,  the  Lessor  must  get  them  paid  as  soon  as  possible  but  not 
later  than  the  first  and  fifteenth  days  of  every  calendar  month  when 
the  Lessor  must  make  payment  of  chits  and  hand  over  to  the  Lessee 
any  and  all  moneys  due  to  the  Lessee.  If  the  Lessor  shall  not  have 
collected  any  money  due  under  chits  signed  and  not  paid  for,  on  the 
first  and  fifteenth  days  of  every  calendar  month,  he  must  make  pay- 
ment in  full  of  such  chits,  and  hand  over  any  money  due  according 
to  the  chits  to  the  Lessee.  The  Lessor  must  take  care  to  supply  re- 
freshment, boarding,  or/and  lodging  to  any  person  or/and  persons 
in  order  to  ensure  due  payment  of  the  charges  for  the  same.  If 
default  shall  be  made  in  the  payment  of  any  chits  on  every  first  and 
fifteenth  days  of  every  month,  the  Lessor  must  take  the  full  respon- 
sibility to  make  payment  in  full  of  any  such  chits  to  the  Lessee." 

"Chits"  to  the  amount  of  Mex.  $3,004.90  were  admittedly 
received  by  defendant  from  plaintiff  who  claims  payment 
therefor  by  virtue  of  the  clause  above  quoted. 

We  cannot  agree  with  defendant's  counsel  that  it  merely 
gives  his  client  the  "right"  to  collect  these  chits.  It  does 
that,  of  course,  but  it  also  imposes  the  obligation  to  pay. 
"The  lessor  must  make  payment;"  that  phrase  is  repeated, 
with  slight  variations,  no  less  than  thrice  in  this  one  clause. 

Counsel  pronounces  this  "a  most  preposterous  guaranty" 
and  we  are  disposed  to  agree  that  it  was  not  a  prudent  one. 
But  that  alone  affords  no  ground  for  relief.  Courts  cannot 
make  contracts  for  parties  nor  inquire  into  the  wisdom  or 
advisability  of  their  undertakings.  For  us  it  is  enough  that 
this  one  was  entered  into  voluntarily  and  of  that  there  can 


958  I  EXTRATERRITORIAL  CASES. 

be  no  doubt.  Defendant  expressly  admits  that  he  read  the 
contract  before  signing  and  he  was  in  a  better  position  to 
understand  it  than  was  plaintiff  to  whom  the  language  was 
foreign.  And  while  defendant  states  its  terms  differently 
than  they  read  the  contract  speaks  for  itself.  We  do  not 
see  that  it  is  ambiguous  and  if  it  were,  the  rule  in  the  Federal 
Courts  is  that  "the  words  of  the  guaranty  (which  counsel 
declares  this  clause  is)  are  to  be  taken  as  strongly  against 
the  guarantor  as  the  sense  will  admit."  ^ 

A  "chit"  for  $1  bears  the  indorsement  "nothing  doing" 
and  counsel  asks  if  it  is  reasonable  to  suppose  that  defend- 
ant ever  guaranteed  such  a  "chit."  If  that  were  the  sole 
indorsement  we  would  think  not  because  it  is  only  "chits 
signed  and  not  paid  for"  of  which,  according  to  the  con- 
tract "he  must  make  payment"  and  a  "chit"  merely  so 
indorsed  is  not  "signed,"  as  the  parties  evidently  used  the 
term.  And  altho  the  "chit"  in  question  is  also  indorsed 
"Mr.  Johnson"  plaintiff  makes  no  claim  for  its  payment. 

If  among  those  claimed  there  is  any  not  properly  signed 
defendant  had  an  opportunity  to  show  it  but  never  attempted 
to  do  so.  Plaintiff  testifies  (p.  14)  "In  every  case  these 
chits  were  presented  to  him  (defendant)  for  his  approval." 
Defendant,  in  reply  to  the  question,  "Did  he  bring  these 
chits  to  you  at  all?"  said  "Not  all"  and  later  stated  (p.  24) 
"What  he  took  at  night  he  gave  to  my  shroff  in  the  morning. 
Sometimes  I  saw  them  and  sometimes  not."  The  shroff 
testified  that  he  was  given  the  chits  every  morning.  This 
not  only  afforded  opportunity  to  verify  all  signatures;  it 
also  constituted  the  notice  of  credit  given  required  by  the 
rule  which  counsel  invokes.  Besides,  a  guaranty  like  this 
is  a  continuing  one  and  the  creditor  is  not  required  to  give 
notice  of  each  item  of  credit  extended.  A  general  notice 
within  a  reasonable  time  after  the  whole  transaction  is 
closed  suffices,-  and  defendant's  testimony  (p.  16)  that  he 
"made  demand  from  time  to  time"  is  undisputed. 


'Douglas  V.  Reynolds,  7  Pet.  (U.  S.)  113,  122,  8  L.  ed.  630  (per 
Story  J.,  citing  Mason  v.  Pritchard,  12  East  227)  ;  Drummond  v. 
Prestman,  12   Wheat    (U.    S.)    515,  518,  6   L.  ed.   712. 

'  Douglas  V.  Reynolds,  7  Pet.  (U.  S.)  113,  8  L.  ed.  626.  Compare 
Montgomery  v.  Kellogg,  43   Miss.  486   cited   by  defendant. 


UNITED  STATES  V.  CARVER  ET  AL.,  APR.    10,   1920.     959 

Counsel  also  invokes  the  rule  that  an  offer  of  guaranty- 
must  be  accepted  by  the  creditor  before  it  binds  the  guaran- 
tor.^ We  are  dealing  here,  however,  not  with  a  mere  offer- 
of  guaranty  but  with  a  completed  contract  in  which  the 
guaranty  is  but  one  feature,  and  by  signing  which  plaintiff 
as  creditor  not  only  accepted  the  guaranty  but  gave  de- 
fendant notice  thereof. 

The  complaint  states  an  additional  claim  for  $302.57  of 
which  all  but  $50,  which  is  claimed  to  have  been  paid,  is 
undisputed.  Plaintiff  admits  the  payment  but  states  that 
it  was  on  another  account  while  defendant's  wife,  who 
actually  made  the  payment,  evidently  means  to  say  (p.  29) 
that  she  intended  it  to  apply  on  this  account  and  since  it 
was  a  voluntary  payment  she  had  that  right,*  and  the  item 
must  be  deducted  from  plaintiff's  recovery. 

It  is  therefore  considered  and  adjudged  that  plaintiff 
have  and  recover  from  defendant  the  sum  of  Mexican 
$3,257.47  together  with  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Joseph  Carver  et  al. 

[Cause  No.   960;   filed   April    10,   1920.] 

SYLLABUS. 

(By  the  Court.) 

1.  CRIMES:   Liability:  Aiding  or  Abetting.     The  law  in  force  here 

has  abolished  the  distinction  between  principals  and  accessories 
and  every  one  who  aids  or  abets  the  commission  of  a  crime  is 
responsible   therefor. 

2.  Id.  :   Id.  :   Id.  :   What  Constitutes.     Such  aiding  or  abetting  need 

not  be  indispensable. 

3.  Id.  :    Reasonable   Doubt  is   not  a  mere   surmise  that  the   accused 

may  not  be  guilty;  it  is  a  doubt  which  reasonable  men  may 
entertain  and  give  a  good  renson  for  after  a  thoro  review  and 
sifting  of  the  evidence. 

4.  Id. :    Robbery:    Evidence   examined    and    found    to    show   that    all 

four  of  the  accused  contributed  to  the  commission  of  the  rob- 
bery charged,  but  moderate  penalty  imposed  on  account  of  their 

'  Citing  Wills  v.  Ross,  77  Ind.  1 ;  Smith  v.  Thesmann,  20  Okla.  133, 
93  Pac.  977;  King  v.  Batterson,  13  R.  I.  117. 
*Cyc.  XXX,  1228. 


960  I  EXTRATERRITORIAL  CASES. 

youth   and  of  the  fact   that  this  appeared  to  have  been  their 
first    serious    offense. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Ferno  J.  Schuhl,  Esq.,  for  the  defense. 

LOBINGIER,  J.; 

The  accused,  who  are  naval  enlisted  men,  are  charged  with 
assault  and  robbery.'  It  appears  that  they  were  all  at  the 
Victoria  Bar  on  the  night  of  March  12  and  left  there,  when 
the  place  closed  at  midnight,  in  company  with  two  civilian 
sailors,  one  of  whom  was  the  complaining  witness,  Carroll. 
He  testifies  that  the  party  passed  thru  several  streets, 
"some  dark,"  defendant  Boldish  walking  beside  him,  de- 
fendant Mast  in  the  lead  and  the  other  civilian  sailor  next. 
When  the  latter  turned  a  corner  and  passed  out  of  sight 
Carroll  states  that  some  one  knocked  him  down  and,  when 
he  tried  to  rise,  defendant  Boldish  struck  him  twice  in  the 
face  and  took  from  him  about  one  hundred  dollars  (includ- 
ing a  $50  note)  which,  the  proprietor  of  the  bar  testifies, 
he  had  just  given  Carroll  in  change,  which  transaction  the 
latter  says  Boldish  had  seen.  Boldish  admits  that  Carroll 
was  with  him,  was  even  leaning  up  against  him.  He  denies 
that  he  robbed  Carroll  and  that  he  had  seen  him  change 
the  money  but  does  not  deny  striking  him. 

The  direct  evidence  as  to  the  corpus  delicti  being  thus 
confined  to  these  two  witnesses  we  have  to  determine  which 
is  the  more  credible.  The  accuser  is  hardly  as  interested 
a  witness  as  the  accused  and  no  reason  has  been  suggested 
why  the  former  should  seek  to  fasten  the  crime  unjustly 
upon  the  latter.  The  complaining  witness  related  these 
details  on  several  distinct  occasions  without  material 
variation.  He  seemed  to  speak  with  caution,  to  discriminate 
carefully  in  his  identification,  and  to  avoid  specifying  more 
than  the  one,  tho,  had  he  been  prevaricating,  he  might 
have  charged  all. 

Boldish  and  Mast  claim  that  Carroll  was  very  drunk  at 
the  time.     The  latter  admits  that  he  had  been  drinking  but 


'Federal  Pen.  Code,  sees.  276,  284. 


UNITED  STATES  V.  CARVER  ET  AL.,  APR.    10,   1920.    961 

denies  that  he  was  drunk  and  in  this  he  is  corroborated  by 
the  proprietor  of  the  bar,  a  disinterested  witness.  But  Bold- 
ish  also  states  that  Carroll  ran  to  attack  defendant  Carver, 
which  seems  not  only  inconsistent  with  the  statement  that 
Carroll  was  very  drunk  but  also  improbable,  as  Carroll, 
even  with  the  other  civilian  sailor,  would  hardly  attack  one 
of  four  blue  jackets.  Carroll's  identification  two  days  later 
of  Boldish  as  the  principal  is  declared  by  Det.  S^.  Ross, 
likewise  a  disinterested  witness,  and,  in  spite  of  the  partial 
denials  of  Boldish  and  Mast,  must  have  satisfied  the  police 
or  Boldish  would  not  have  been  arrested. 

Defendant  Carver  admits  having  struck  Carroll  when  he 
"came  running  back"  and  without  any  claim  of  provocation 
by  the  latter.  He  evidently  knew  of  the  robbery  for  he 
stated  to  Lt.  Wells,  in  the  hearing-  of  Det.  Sgt.  Ross,  that  he 
got  none  of  the  money  but  the  next  morning  he  gave  $70 
to  another  party  so  as  to  avoid  suspicion  by  not  having  it 
on  his  person.  The  amount  included  a  $50  (American) 
bill  which  Carver  says  he  had  received  by  (unregistered) 
mail  from  his  brother.  But  this  was  of  the  same  denom- 
ination as  that  received  by  Carroll  in  change  and  later 
taken  from  him  and  Carver's  explanation  of  where  he  got 
it  is  affected  by  his  testimony  that  he  did  not  know  of  the 
robbery  after  admitting  to  Lt.  Wells  that  he  did. 

As  we  have  seen,  Carroll's  testimony  is  that  he  was 
knocked  down  just  after  the  other  civilian  sailor  had  turned 
the  corner  and  passed  out  of  sight.  Behind  him  was  de- 
fendant Beck,  according  to  the  latter's  testimony,  and  then 
followed  Boldish  and  Carroll,  and  last  of  all  Carver.  Car- 
roll further  testifies  in  answer  to  the 

"Q.  And  who  was  in  front  of  you  just  before  you  were  struck  in 
the  head? 

A.  Struck  in  the  head  at  that  time  one  little  fellow,  I  don't  know 
what  his  name  is." 

This  answers  to  the  description  of  Beck  and  agrees  with 
his  statement  as  to  his  position.     Beck  also  says 

"I  saw  Mast  hit  this  big  fellow  (the  other  civilian)  and  then  I 
took  a  swipe  at  him." 

Beck  stated  to  Lt.  Wells  that  he  used  a  stick  and  that  the 
motive  of  the  assault  on  Carroll  was  robbery  but  that  he  re- 

14008  O.  W. 61 


962  I  EXTRATERRITORIAL  CASES. 

ceived  none  of  the  money.  Carver  says  that  he  saw  this 
civilian  fall  after  being  struck  with  what  "sounded  like  a 
board." 

Mast  and  Boldish  claim  that  the  civilian  started  the  fight 
but  it  is  difficult  to  believe  that  either  or  both  of  them 
would  make  an  unprovoked  attack  on  the  largest  of  these 
blue  jackets  knowing,  as  they  must,  that  the  other  three 
would  come  to  the  rescue. 

Mast  claims  that  he  did  not  see  Carroll  change  his  money 
at  the  bar  but  he  makes  the  significant  admission  that 
he  changed  his  marine's  uniform  for  that  of  a  blue  jacket 
"after  we  met  Carroll"  and  the  proprietor  says  that  this 
was  done  in  the  bar.  Mast  knew,  he  says,  that  changing 
uniform  was  prohibited  by  the  naval  regulations  and  pun- 
ishable by  confinement  "on  bread  and  water"  but  he  gives 
no  explanation  for  doing  it  except  that  it  was  "just 
for  a  lark."  The  fact  that  he  changed  only  "after 
we  met  Carroll"  seems  to  point  to  a  purpose  which  made 
disguise  advisable.  Carver  and  Beck  also  doffed  the  naval 
uniforms  which  they  wore  at  the  time  of  the  affair  and 
were  in  civilian  clothes  when  arrested.  Why  all  this  con- 
cealment, including  Carver's  transfer  of  the  money,  if  de- 
fendants' parts  in  this  unfortunate  affair  were  innocent? 

It  was  not  necessary  that  the  four  accused  should  have 
planned  a  crime  before  coming  to  the  bar  or  even  before 
leaving  it.  But  there  are  indications  of  design  in  Mast's  sud- 
den change  of  uniform,  in  his  leading  the  party  thru  certain 
dark  streets,  in  the  fact  th|at  the  other  civilian  was  felled 
after  he  had  passed  from  Carroll's  view  and  that  three 
of  the  blue  jackets  had  picked  up  weapons  and  were  pre- 
pared, while  the  civilians  were  not. 

It  is  true  that  complaining  witness  accuses  only  Boldish 
of  taking  his  money  and  that,  as  defendants'  counsel  con- 
tends,- their  mere  presence  at  the  scene  of  the  crime  would 
not  incriminate  them.  But  if  they  were  there  to  aid  or 
abet  the  criminal  design,  or  if  they  did  aid  or  abet  it,  the 
not  originally  there  for  that  purpose,  they  are  liable  equally 

'  Citing  U.  S.  V.  Johnson,  26  Fed.  682;  People  v.  Ah  Ping,  27  Calif., 
489;  State  v.  Farr,  33  la.  553. 


UNITED  STATES  V.  CARVER  ET  AL.,  APR.   10,   1920.    963 

with  the  chief  perpetrator.^^  And  in  order  to  aid  or  abet, 
it  was  not  necessary  that  the  accused  should  have  contributed 
to  the  commission  of  the  crime  in  the  sense  that  it  could 
not  have  occurred  without  them.*  It  was  sufficient  if  they 
encouraged  ^  the  actual  perpetrator  and  they  seem  to  have 
done  much  more.  Mast  and  Beck  appear  to  have  kept  the 
two  civilians  apart  and  to  have  disabled  one  while  Boldish 
and  Carver  attacked  the  other.  There  was  thus  direct 
participation  by  all  which  facilitated  the  actual  taking  of 
money  by  one. 

In  discussing  the  phrase  "reasonable  doubt"  a  well  known 
Judge  '^  said  in  his  charge  to  a  jury: 

"It  is  not  a  mere  guess — a  mere  surmise — that  one  may  not  be 
guilty  of  what  is  charged.  It  is  a  doubt  that  you  may  entertain,  as 
reasonable  men,  after  a  thoro  review  and  consideration  of  the  evi- 
dence— a  doubt  for  which  a  good  reason,  arising  from  the  evidence, 
can  be  given." 

After  such  a  "review  and  consideration"  of  this  evidence 
we  are  unable  to  entertain  such  a  doubt  or  give  such  a  reason 
and  we  must,  therefore,  find  the  accused  guilty  of  the  crime 
of  robbery. 

The  maximum  penalty  is  imprisonment  for  "not  more 
than  fifteen  years."  '^  But  in  view  of  the  youth  of  the  ac- 
cused and  the  fact  that  this  appears  to  be  their  first  serious 
offense  we  shall  reduce  this  to  the  lowest  point  consistent 
with  such  seriousness  and  the  necessary  deterrent  effect  of 
punishment. 

Each  is  sentenced  to  serve  two  years  in  Bilibid  Prison, 
Manila,  territory  of  the  Philippines,  and  to  pay  one  fourth 
of  the  costs. 

'Federal  Penal  Code,  sec.  332;  U.  S.  v.  LeClair,  ante,  p.  414;  U.  S. 
V.  Johnson,  228  Fed.  253. 

*  State  V.  Tally,  102  Ala.  25,  15  So.  722. 

'  People  V.  Chapman,  62  Mich.  280,  28  N.  W.  896;  16  Corpus  Juris, 
131. 

'  Speer,  J.,  in  U.  S.  v.  Johnson,  26  Fed.  685. 

Reasonable  doubt  does  not  mean  all  doubt.  U.  S.  v.  Wright,  16 
Fed.  112. 

'Federal  Penal  Code,  sec.  284. 


964  I  EXTRATERRITORIAL  CASES. 

IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
A,  TiLTON  Steele,  Plaintiff,  v.  American  Trading  Com- 
pany, Defendant. 

[Cause  No.   798;   filed  April  20,   1920.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRACTS:    EMPLOYMENT.      A  contract  of  employment  as  "Chief 

Accountant  of  our  Shanghai  office"  for  three  years  at  a  minimum 
compensation  of  $10,000,  conditioned  upon  the  employee  "doing 
his  work  in  an  efficient  and  satisfactory  way"  cannot  be  ter- 
minated by  the  employer  on  a  ground  independent  of  the 
"way"  in  which  the  accountant  did  his  work. 

2.  Id.  :  Id.  :  The  Measure  of  Damages  in  an  action  by  the  employee 

for  the  wrongful  termination  of  such  a  contract  (as  dis- 
tinguished from  an  action  for  salary)  is  the  amount  he  would 
have  received  thereunder,  viz.,  $10,000,  less  any  payments  and 
outside  earnings. 

3.  Id.:  Id.:  Onus  Probandl      The  employer  has  the  burden  of  prov- 

ing what  other  emplojrment  the  employee  might  obtain. 

4.  Id.  :  Id.  :  Exchange.     Where  such  contract  is  silent  as  to  the  rate 

of  exchange,  the  evidence  must  show  that  the  minds  of  the 
parties  met  aliunde  on  a  specific  rate  before  it  can  be  applied. 

5.  PLEADING:    IMMATERIAL   AVERMENTS   are   not   admitted   by   a    fail- 

ure to  deny  and  an  averment  must  be  clear  and  unequivocal 
to   support  a  judgment  on  the  pleadings. 

6.  arbitration    and    award.      Where    the    matter    submitted    is 

the  amount  due  under  two  contracts  and  the  arbitrator  merely 
refers  one  of  them  to  a  third  party,  and  leaves  proof  to  be 
taken  elsewhere  as  regards  the  other,  there  is  no  valid  award. 

Jernigan,   Fessenden  &   Rose,  by   Mr.   Fessenden,  and 
Rodger  &  Haskell,  by  Mr.  Haskell,  for  plaintiff. 

Fleming,  Davies  &  Bryan,  by  Mr.  Bryan,  for  defendant. 

LOBINGIER,  J.: 

Plaintiff  sues  for  the  breach  of  a  contract  of  employment 
evidenced  in  part  by  the  following  instrument  (Ex.  A)  : 

San  Francisco,  Cal.,  May  27,  1918. 
Mr.  a.  Tilton  Steele, 

Present. 
Dear  Sir: 

Confirming  the   writer's   conversations  with   you   during  the   past 
few  days,  we  have  employed  you  as  follows: 

Position :  Chief  Accountant  of  our  Shanghai  office,  the  duties  of 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.  20,  1920.       965 

which  office  you  are  to  take  up  as   quickly  as  possible,   proceeding 
herefrom  for  Shanghai  within  about  thirty  days. 

Duration  of  Etnploy merit:  Three  years  from  July  1  next  or  earlier 
if  the  time  of  your  departure  from  San  Francisco  for  Shanghai 
hereunder  be  earlier.  Should  you  not  leave  San  Francisco  for 
Shanghai  hereunder  prior  to  July  1,  your  salary  will  commence  on 
July  1. 

Compensation:  Two  Hundred  and  Fifty  ($250)  Dollars,  U.  S. 
Gold  per  month  for  the  first  year  and  for  the  second  and  third 
year  adjustments  of  salary  to  be  made  at  the  end  of  the  first  and 
second  year,  as  may  be  mutually  agreed;  your  compensation,  how- 
ever, not  to  be  less  than  Ten  Thousand  ($10,000)  Dollars  for  the 
entire  period  of  three  years. 

Satisfactory  Service:  The  undertakings  herein  contained  on  our 
part  are  all  conditioned  upon  your  doing  your  work  in  an  efficient 
and  satisfactory  way. 

Transportation  to  Shanghai:  In  addition  to  salary,  as  herein  pro- 
vided, we  will  provide  you  with  first-class  transportation  to  Shanghai. 

Bond:  It  is  a  condition  of  your  employment  that  you  give  any 
bond  the  Company  may  require,  the  Company  paying  the  premium 
thereon. 

Yours  truly, 

American  Trading  Company, 
(Pacific  Coast), 
Louis  A.  Ward, 
Vice  Presideyit  &  Manager. 
Confirmed  &  Accepted: 

A.  TiLTON  Steele. 

In  its  answer  defendant  alleged  that  this  instrument  was 
executed  not  by  it,  but  by  a  distinct  corporation,  viz.,  the 
American  Trading  Company  (Pacific  Coast).  But  at  the 
trial  defendant's  executive  head  in  Shanghai  testified  (pp. 
16,  28)  that  plaintifi"s  employment  was  authorized  by  de- 
fendant's President.  On  August  6  following  the  execution 
of  said  instrument,  and  pursuant  to  its  terms,  plaintiff 
sailed  from  Seattle  for  Shanghai  but  while  en  route  received 
a  radiogram  from  defendant's  Vice  President  at  Yokohama 
reading : 

This  (there?)  is  probability  your  being  required  Tokyo  office 
for  few  months  before  going  Shanghai.  Please  be  prepared  to 
leave   ship   in   Yokohama.      Blake, 

American  Trading. 

Following  an  interview  at  Yokohama  defendant's  Vice 
President  wrote  plaintiff  the  following  letter,  after  receiv- 


966  I  EXTRATERRITORIAL  CASES. 

ing  which,  he  testifies  (pp.  4,  5)  he  worked  at  defendant's 
Tokyo  office  until  May  3,  1919: 

Tokyo,  Aug.  27th,   1918. 
A.  Tilton  Steele,  Esq., 

Present, 
Dear  Sir: 

We  beg  to  confirm  our  conversation  of  yesterday's  date  with  ref- 
erence to  your  temporary  employment  in  this  Office. 

Compensation:  The  Compensation  provided  for  in  your  original 
contract  made  with  Mr.  L.  A.  Ward,  Vice  President  and  Manager 
of  the  American  Trading  Company  of  the  Pacific  Coast  on  May  27th 
calls  for  a  salary  of  $250  Gold  per  month,  or  a  salary  of  not  less 
than  $10,000  for  the  three  years'  period  of  your  contract.  We  have 
arranged  that  you  are  to  receive  $250  Gold  at  exchange  .50,  which 
is  the  equivalent  of  Yen  500.00  per  month  together  with  an  addi- 
tional allowance  of  Yen  150  per  month  to  cover  any  additional  ex- 
penses which  you  may  be  put  to  owing  to  the  change  in  your  plans. 
The  two  items  above  mentioned  will  make  a  total  of  Yen  650  per 
month  which  you  will  receive  while  you  are  in  the  employ  of  our 
Tokyo  Office. 

Term  of  Em.ploym.ent:  As  explained  to  you,  we  wish  you  to  re- 
main in  Tokyo  during  the  time  that  Mr.  Boyd  is  absent  on  holiday 
which  we  estimate  will  be  about  six  months.  This  time  vdll,  of 
course,  apply  on  your  three  years'  term  as  mentioned  in  your  orig- 
inal contract. 

Traveling  Expenses:  Any  legitimate  traveling  expenses  incurred 
by  you  on  behalf  of  the  company  will  be  refunded  to  you. 

General:  It  is  understood  between  us  that  this  temporary  arrange- 
ment does  not  prejudice  any  verbal  understanding  which  you  may 
have  had  with  Mr.  Ward  or  with  Mr.  Burns  prior  to  your  departure 
from    San    Francisco. 

We  remain.  Dear  Sir, 

Very  truly  yours, 

American  Trading  Company, 
D.  H.  Blake, 
Vice  President. 

Nearly  seven  months  later,  the  same  party  wrote  again 
as  follows : 

Tokyo,  March  19,  1919. 
A.  Tilton  Steele,  Esq., 

American  Trading  Co., 

Tokyo. 
Dear  Sir: 

With  reference  to  our  conversation  of  a  few  days  ago,  we  beg 
to  confirm  what  we  told  you  at  that  time,  to  the  effect  that  we  have 
received  word  from  Mr.  Burns,  Agent  of  our  Shanghai  Office,  that 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.  20,  1920.       967 

as  he  had  made  satisfactory  arrangements  with  Mr.  Manley  to  re- 
main with  the  Company,  he  did  not  now  want  you  to  come  to 
Shanghai. 

We  also  confirm  our  statement  that  as  soon  as  Mr.  Boyd  returns 
to  his  position  in  Tokyo,  probably  about  the  end  of  April,  we  shall 
have  no  further  use  for  your  services  here. 

We  cannot  say  what  your  recourse  will  be  under  your  contract, 
but,  as  intimated  the  other  day,  the  writer  will  be  glad  to  render 
you  such  assistance  as  he  can  in  order  to  effect  a  mutually  satis- 
factory settlement — but  before  anything  can  be  done  in  this  con- 
nection it  will  be  necessary  for  you  to  make  some  suggestions  in  the 
premises. 

We  remain, 

Yours  very  truly, 

American  Trading  Company, 
D.  H.  Blake, 
Vice  President. 

Plaintiff  testifies  (pp.  11-13)  that  he  later  went  to  Shang- 
hai and  offered  by  telephone  to  carry  out  his  contract  with 
defendant  but  was  told  not  to  come  and  this  is  confirmed 
(p.  28)  by  defendant's  agent  in  Shanghai.  Plaintiff's  em- 
ployment, as  we  have  seen  (Ex.  "A")  was  as  "Chief  Ac- 
countant of  our  Shanghai  office"  and  was  "conditioned 
upon  your  (his)  doing  your  work  in  an  efficient  and  satis- 
factory way."  Is  it  possible  to  decide  that  he  was  unable 
so  to  do  the  work  of  that  particular  position  when  he  was 
given  no  opportunity  to  do  it? 

Plaintiff's  counsel  contends  that 

*  *  *  "It  is  established  beyond  a  shadow  of  a  doubt  by  the 
evidence,  the  conduct  of  defendant,  and  defendant's  pleadings  that 
the  defendant  not  only  regarded  the  letter  of  August  27,  1918  and 
the  original  contract  as  separate  and  distinct  agreements  but  acted 
accordingly  even  to  the  extent  of  denying  being  a  party  to  the  orig- 
inal agreement,"  and  "that  evidence  of  unsatisfactory  services  under 
one  contract,  performed  in  one  country  and  under  certain  conditions, 
is  neither  competent  nor  relevant  to  prove  that  services  to  be  per- 
formed in  another  country  under  different  conditions,  even  though 
for  the  same  company,  would  be  unsatisfactory." 

But  even  if  it  be  conceded,  as  defendant's  counsel  urges, 
that  "th§  letter  of  August  27  was  merely  a  supplemental 
agreement  to  the  original  contract,"  can  we  import  into  the 
former  all  the  terms  of  the  latter?  For  the  former  was 
not  "conditioned  upon"  plaintiff's  "doing  his  work  in  an 


968  I  EXTRATERRITORIAL  CASES. 

efficient  and  satisfactory  way"  and  it  contained  no  clause 
authorizing  defendant  to  discharge  plaintiff  within  the 
term  of  his  "temporary  employment"  which  was  "during 
the  time  that  Mr.  Boyd  is  absent"  (Ex.  "C").  Again, 
and  more  important  still,  can  we  import  into  the  original 
contract  of  employment  as  "Chief  Accountant  of  our  Shang- 
hai office"  the  condition  of  "doing  his  work  in  an  efficient 
and  satisfactory  way"  as  chief  accountant  in  the  Tokijo 
office  under  a  separate,  even  if  supplemental,  agreement, 
so  as  to  justify  exclusion  from  the  former  for  unsatisfactory 
service  in  the  latter?  Such  an  attempt  seems  to  approach 
dangerously  near  the  forbidden  process  of  making  a  new 
contract  for  the  parties. 

But,  even  were  we  to  do  so,  we  could  not  enlarge  the 
condition  of  the  original  contract  that  plaintiff  should  do 
"his  work  in  an  efficient  and  satisfactory  way."  Counsel 
contends  that  "the  Court  has  merely  to  inquire  '•'  *  * 
whether  or  not  the  defendant  was  dissatisfied"  and  that  we 
"cannot  decide  whether  defendant  should  have  been  sat- 
isfied." But  under  a  clause  like  this,  which  authorizes 
discharge,  not  if  defendant  was  "dissatisfied"  with  plain- 
tiff, but  only  if  the  latter  failed  to  do  "his  work  in  an  ef- 
ficient and  satisfactory  way,"  ^  we  must,  as  we  read  the 
authorities,-  "inquire"  and  "decide"  whether  the  dismissal 

^  "Where  the  chief  thing  the  parties  have  had  in  mind  was  to 
effect  some  definite  purpose  or  end,  of  the  performance  of  which 
others  could  judge  just  as  well  as  the  parties  could,  and  which  in- 
volved no  considerations  strictly  personal,  the  stipulation  that  it 
should  be  done  to  the  satisfaction  of  the  party  has  been  generally 
held  not  to  be  controlling."  Frary  v.  Rubber  Co.,  52  Minn.  264, 
53  N.  W.  1156.      - 

^  Louisiana.      Hotchkiss  v.   Gretna   Co.,  36   La.   Ann.   517. 

Maine.      Winship  v.  Portland  etc.  Ass'n.,  78  Me.  571,  7  Atl.  706. 

Mississippi.  Atlanta  Stove  Works  v.  Hamilton,  83  Miss.  704, 
35   So.   763. 

Michigan.     Jones  v.  Transp.  Co.,  51  Mich.  539,  16  N.  W.  893. 

New  York.  Doll  v.  Noble,  116  N.  Y.  230,  22  N.  E.  406  and 
citations. 

Texas.      Rhodes  Co.  v.  Frazier,  55  S.  W.  192. 

Vermont.      Daggett  v.   Johnson,  49   Vt.   345. 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.  20,  1920.       969 

was  really  because  of  the  "way"  plaintiff  did  his  "work" 
or  on  some  other  ground. 

We  find  very  little  in  the  evidence  as  to  the  "way"  in 
which  plaintiff  did  his  "work"  as  chief  accountant  even 
in  Tokyo.  Most  of  the  criticisms  of  him  relate  to  other 
matters  than  his  actual  work  as  chief  accountant.  The 
Shanghai  agent  of  defendant  testified  (p.  18)  that  he  ob- 
jected to  plaintiff  "on  account  of  his  personality."  But 
his  "personality"  was  not  a  ground  for  dismissal,^  even 
under  the  original  contract,  unless  it  rendered  his  work 
as  chief  accountant  inefficient  and  unsatisfactory.  And 
the  only  reason  given  plaintiff  for  his  dismissal  was  that 
as  the  same  agent  "had  made  satisfactory  arrangements 
with  Mr.  Manley  to  remain  with  the  Company,  he  did  not 
now  want  you  to  come  to  Shanghai"  (Ex.  D).  Moreover 
the  incident  stressed  by  Mr.  Paget  occurred  after  the  dis- 
missal (p.  63)  and  could  not  have  furnished  the  cause 
thereof.  Certainly  the  conduct  of  the  parties  at  the  time 
of  the  transaction,  and  not  afterward,  is  the  best  index  to 
the  real  ground. 

Counsel  invokes  a  written  statement  (Ex.  2)  prepared 
by  defendant's  Vice  President  for  the  arbitration  proceed- 
ings hereafter  mentioned.  This  document  is  dated  May 
10,  1919,  after  plaintiff  had  been  discharged,  and  it  is 
objected  to  as  not  properly  in  evidence.  But  we  have  de- 
cided to  receive,  for  what  they  are  worth,  all  exhibits 
offered  by  either  party  and  we  shall  notice  this  as  the  Vice 
President's  last  and  most  carefully  prepared  statement  of 
his  objections  to  plaintiff  and  one  which  he  would  hardly 
have  improved  upon  had  he  testified  in   Court. 

The  criticisms  of  plaintiff  in  the  statement  may  be  sum- 
marized as  follows:  (1)  Desire  to  change  the  system  of  ac- 
counting; (2)  tardiness  in  attendance  and  "disregard  of 
our  office  rules"  (particulars  not  given)  ;  (3)  writing  let- 
ters about  the  office  to  the  Vice  President  of  the  American 
Trading  Co.   (Pacific  Coast). 

'  "Slight  discourtesies,  hasty  words  and  occasional  exhibitions  of 
irritation  or  even  ill  temper  were  not  sufficient  cause."  Dick,  /., 
charging  the  jury  in  Leatherberry  v.  Odell,  7  Fed.  645. 


970  I  EXTRATERRITORIAL  CASES. 

As  to  the  first,  plaintiff  claims  in  his  testimony  (pp.  45 
et  seq.)  that  the  system  of  accounting  needed  improvement. 
There  is  no  evidence  that  he  was  mistaken.  On  the  con- 
trary his  proposals  appear  not  to  have  been  unwelcome 
even  up  to  the  time  he  left  the  Tokyo  office.  On  April 
12  and  again  on  April  30  he  wrote  regarding  the  matter 
to  the  Vice  President,  the  second  letter  reading  in  part  as 
follows : 

"Re  iTnprovement  in  the  System  of  Account  &  Collections 
May  I  know  definitely  if  the  suggestions  embodied  in  my  letter  to 
you  dated  April  12-19  are  approved  by  you,  and  whether  or  not  it 
is  your  desire  that  I  should  remain  in  the  Tokyo  office  to  co-operate 
with  Messrs.  Mauger  &  Boyd  in  the  proposed  changes?" 

To  this  the  Vice  President  replied  on  the  same  date: 

"With  reference  to  your  letter  of  the  12th  inst.,  I  am  keenly 
interested  in  your  suggestion,  but  it  is  quite  impossible  for  me  to 
say  at  this  time  whether  or  not  we  shall  put  your  suggested  scheme 
into  operation." 

Surely  there  is  no  suggestion  in  this  that  plaintiff's  pro- 
posals for  improvement  affected  unfavorably  the  character 
of  his  work. 

As  to  the  second  complaint  plaintiff  denies  (p.  41)  the 
charge  that  he  disregarded  office  rules  and  testifies  (p.  32)  : 

"On  one  or  two  occasions  Mr.  Blake  saw  me  in  the  hall  leading 
to  my  office  and  he  had  already  come  in,  I  think  it  was  about  a 
quarter  of  an  hour  or  twenty  minutes  to  nine,  and  he  said  'well  you 
are  late'  and  I  said  'yes,  but  it  was  on  the  Company's  business.' 

Q.  Now  as  a  matter  of  fact  during  the  period  you  served  there 
did  you  serve  the  full  extent  of  the  office  period? 

A.  More  than  that.  I  didn't  go  to  tiffin  during  the  lunch  hour 
of  twelve  to  two.  I  was  the  only  person  in  the  office  during  the 
lunch  period." 

Plaintiff's  duties  as  accountant  were  not  like  those  of 
a  salesman  or  other  employee  who  must  meet  the  public  at 
certain  hours.  There  is  no  claim  that  the  time  devoted 
to  his  work  as  an  accountant  was  insufficient. 

As  to  the  third  complaint  plaintiff  states  (pp.  44  et  seq.) 
that  he  wrote  the  Vice  President  at  San  Francisco  be- 
lieving him  to  be  the  superior  of  all  and  that  it  was  to  the 
interest  of  the  defendant  company  that  he  should  receive 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.  20,  1920.       971 

the  information  thus  transmitted.  In  this  plaintiff  may- 
have  been  mistaken  but  we  cannot  see  that  what  he  did 
was  any  part  of  his  "work"  as  chief  accountant. 

Plaintiff  also  testifies  (pp.  31  et  seq.)  that  these  com- 
plaints were  not  made  to  him  by  the  Vice  President  at 
Tokyo,  that  "the  point  of  dissatisfaction  was  never  men- 
tioned" by  the  latter  and  that  the  real  ground  of  plaintiff's 
dismissal  was  quite  different.  This  is  corroborated  by  the 
said  Vice  President's  letter  of  March  19,  1919,  quoted 
above  (p.  966)  and  by  another  which  he  wrote  on  the  same 
day  to  the  San  Francisco  Vice  President,  reading  in  part 
as  follows : 

"You  will  perhaps  not  be  prepared  for  the  news  that  Mr.  Steele 
is  not  going  to  Shanghai  to  our  office  at  that  port.  I  presume 
that  when  Mr.  Burns  went  through  San  Francisco  this  matter  was 
not  discussed  with  you,  because  Mr.  Burns  thought  at  that  time 
that  Mr.  Steele  would  replace  Mr.  Manley  after  the  return  of  Mr. 
Boyd  to  Tokyo  from  his  short  holiday.  In  the  meantime  Mr.  Burns 
has  made  satisfactory  arrangements  with  ^r.  Manley  and  desires 
to  continue  his  services  with  the  Company, — and  that  being  the 
case,  he  has  no  position  for  Mr.  Steele."     (Ex.  10.) 

Not  a  word  in  this  about  unsatisfactory  or  inefficient 
service.  He  was  writing  to  another  company  official,  and 
could  speak  without  reserve,  yet  the  only  cause  assigned 
for  plaintiff's  dismissal  was  that  the  Shanghai  office  had 
persuaded  another  to  remain  in  his  place. 

Finally  in  his  letter  of  May  2,  1919,  the  same  Vice  Pres- 
ident informs  plaintiff 

"that  in  giving  up  your  duties  and  handing  over  charge  of  the 
Accountant  Department  to  Mr.  Boyd,  as  requested  by  me,  both  ver- 
bally and  in  writing,  your  rights  and  interests  under  your  original 
agreement  with  the  Company,  or  my  letter  of  August  27th,  1918, 
will  not  be  prejudiced  in  any  way"     (Ex.  "G"). 

Such  was  defendant's  position  at  the  time  of  the  dismis- 
sal and  before  the  statement  of  May  10  was  prepared. 
In  view  of  it  and  the  lack  of  countervailing  evidence  we 
are  unable  to  find  that  such  dismissal  took  place  because 
plaintiff  failed  to  do  his  work  as  Chief  Accountant  in  the 
Tokyo  Office  "in  an  efficient  and  satisfactory  way;"  or 
that  defendant  sought  to  terminate  on  that  ground  his  em- 


972  I  EXTRATERRITORIAL  CASES. 

ployment  under  the  original  contract;  or  that  it  was  justi- 
fied in  so  terminating  said  contract.  It  follows  that  we 
must  find  that  said  contract  was  wrongfully  terminated. 

II. 

But  it  is  claimed  that  the  question  of  the  character  of 
plaintiff's  work  is  determined  against  him  on  the  pleadings 
by  virtue  of  the  failure  to  deny  in  his  replication  the  aver- 
ment of  the  answer 

"That  the  alleged  services  rendered  by  the  plaintiff  herein  to 
the  defendant  were  neither  satisfactory  nor  efficient,  as  required  in 
the  contract  alleged  in  plaintiff's  petition,  a  copy  of  which  is  at- 
tached thereto  and  marked  Exhibit  *A,'  and  that  the  said  plaintiff 
in  the  performance  of  his  alleged  duties  was  ineflficient,  negligent 
and  insubordinate  to  his  superiors." 

But  what  were  the  "alleged  services"  and  "alleged  duties" 
here  mentioned?  How  were  they  alleged  and  by  whom? 
The  complaint  alleges  nothing  about  plaintiff's  "duties"  or 
"services."  Neither  did  the  contract  (Ex.  "A")  require 
the  "services  rendered  by  the  plaintiff" — i.  e.,  in  Tokyo — 
to  be  "satisfactory  or  efficient."  The  averment  is,  there- 
fore, indefinite,  whereas,  to  support  a  judgment,  it  "must 
be  distinct  and  unequivocal."  * 

Again  the  only  services  in  issue  here  are  the  actual 
(not  alleged)  ones  which  plaintiff  rendered  in  Tokyo  and 
the  future  (tho  not  alleged)  ones  which  he  offered,  but 
was  not  permitted,  to  render  in  Shanghai.  None  of  these 
can  correctly  be  included  in  the  phrase  "alleged  services" 
and  the  averment  regarding  them  is  thus  also  immaterial. 
But  immaterial  allegations  are  not  admitted  by  failure  to 
deny  ^  and  the  only  ones  which  are  so  admitted  are  those 
which  are  well  pleaded.''  For  when  a  party  bases  his  claim 
on  a  technical  rule  of  pleading,  or  a  technical  oversight 
on  the  part  of  his  adversary,  his  own  pleadings  must  bear 


*  23  Cyc.  731  (note  12) . 
°31  Cyc.  209   (note  87). 

°Id.    (note   81);    Alston   v.   Wilson,   44   la.    130,   132;    Moulton   v. 
Doran,  10  Minn.  67    (49). 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.  20,  1920.       973 

microscopic  scrutiny  and  nothing  therein  will  be  implied  or 
supplied  by  intendment. 

Plaintiff's  counsel  may  have  considered  that  defendant's 
averment  regarding  "alleged  services"  was  too  vague  and 
uncertain  to  require  a  denial.  Or  they  may  have  relied  on 
the  practice  heretofore  followed  in  this  Court  that  in  the 
absence  of  a  reply  new  matter  in  the  answer  will  be  taken 
as  denied.'^  This  is  because  the  old  Court  Regulations  ® 
provide  for  but  one  pleading  for  each  party  and  the  Court 
has  not  yet  found  time  to  frame  a  different  rule.  If  by 
this  situation  plaintiff  were  misled  into  his  failure  to  deny, 
it  would  be  the  Court's  duty,  even  now,  to  permit  him  to 
amend  by  adding  such  denial  ^  for  the  case  was  tried  on 
the  theory  that  he  did  not  admit  that  his  services  were 
inefficient  or  unsatisfactory.  But  we  consider  such  amend- 
ment unnecessary,  because  we  could  not  base  a  judgment  on 
the  averment  regarding  "alleged  services,"  and  the  motion 
for  such  judgment  is  overruled. 

III. 

It  is  also  claimed  that  plaintiff  is  barred  in  this  action 
by  an  award.  On  May  2,  1919,  he  wrote  defendant's  Vice 
President : 

"It  must  also  be  distinctly  understood  between  us,  in  writing, 
in  accordance  with  the  terms  of  my  understanding  with  our  Ambas- 
sador, the  Hon'ble  Mr.  Roland  Morris,  reached  in  my  conversation 
with  him  at  the  Embassy  yesterday,  that  we  are  both  to  agree  and 
to  state  such  agreement  in  writing  to  him,  assenting  to  the  arbitra- 
tion of  the  Hon'ble  Mr.  Potter,  whose  award  must  be  considered  as 
binding  to  both  parties  in  the  matter  of  the  main  issue  involved  in 
the  case,  viz.,  the  amount  of  compensation  to  be  paid  to  me  here  at 
the  Tokyo  office  of  the  company  in  full  settlement  of  all  my  claims 
against  the  company  under  the  two  agreements  I  have  with  the  com- 
pany." 

'  Compare  the  group  of  code  states  enumerated  in  31  Cyc.  242 
(56). 

»Sec.  5. 

*  Act  of  Congress  of  June  6,  1900,  sess.  I,  31  U.  S.  Stats,  at 
Large,  Ch.  786,  tit.  II,  sees.  92,  97;  Alaska  Compiled  Laws,  sees. 
924,  929;  in  force  here  under  the  doctrine  of  Biddle  v.  U.  S.,  ante 
p.  120. 


974  I  EXTRATERRITORIAL  CASES, 

And  on  the  same  date  the  Vice  President  replied: 

"With  reference  to  the  arbitration  of  our  differences,  I  confirm  my 
previously  expressed  willingness  to  acquiesce  in  the  suggestion  made 
by  H.  E.  Ambassador  Morris,  that  the  arbitration  should  be  placed 
in  the  hands  of  the  Honorable  Mr.  Potter,  who  is  at  present  in  Tokyo, 
and  that  his  award  should  be  binding  on  both  parties,  and  shall 
be  settled  in  Tokyo." 

Likewise  on  the  same  day  the  parties  notified  the  Am- 
bassador that 

"In  accordance  with  your  kind  suggestion,  we,  the  undersigned 
agree  to  the  arbitration  of  our  differences  by  the  Honorable  Mr. 
Potter,  and  undertake  to  abide  by  and  put  into  effect  whatever  award 
he  makes." 

But  the  statement  of  what  "our  diff'erences"  are,  and 
hence  the  real  terms  of  submission,  are  found  only  in  the 
letters  exchanged  between  the  parties  and  the  issue  there 
submitted  is  clearly  enough  stated  in  the  words  italicised 
above.  But  the  arbitrator,  after  briefs  had  been  submitted 
on  both  sides,  expressed 

"the  opinion  that  the  matter  of  the  three  year  contract  should  be 
referred  to  Mr.  Ward  in  San  Francisco  for  settlement;  second,  that 
Mr.  Blake  should  pay  Mr.  Steele  in  full  until  such  time  as  Mr. 
Steele  can  secure  first  class  passage  back  to  San  Francisco  less  any 
indebtedness  that  may  be  proved  that  Mr.   Steele  owes  Mr.   Blake." 

Plaintiff's  counsel  deny  that  this  constitutes  a  valid  award 
because  it  (1)  fails  to  dispose  of  the  issue  submitted  and 
(2)  attempts  to  delegate  authority.  We  see  no  escape 
from  these  objections.  The  arbitrator  did  not  determine 
"the  amount  of  compensation  to  be  paid"  plaintiff  "in  full 
settlement"  of  all  his  claims  "under  the  two  agreements" 
nor  was  the  matter  "settled  in  Tokyo."  On  the  contrary 
he  expressed  the  opinion  that  the  whole  "matter  of  the 
three  year  contract  (the  principal  of  "the  two  agree- 
ments") should  be  referred  to"  another  "for  settlement" 
elsewhere.  He,  indeed,  expressed  the  opinion  that  plaintiff 
should  be  paid  (presumably  under  the  second  contract  as 
the  first  was  to  be  "referred"  to  another)  "in  full"  until  he 
could  secure  return  passage,  which   should  have  been   a 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.  20,  1920.       975 

matter  of  a  few  days;  but  such  payment  was  to  be  "less 
any  indebtedness  that  may  be  proved." 

How  and  where  was  it  to  be  "proved"?  Evidently  not 
before  the  arbitrator.  As  to  the  second  contract,  then, 
plaintiff  was  left  with  the  possible  alternative — which  he 
ultimately  adopted — of  resorting-  to  the  courts ;  while  as  to 
the  first  contract  he  was  "referred  to  Mr.  Ward  in  San  Fran- 
cisco for  settlement."  Both  of  these  expedients  were  open 
to  plaintiff  before  submission  and  the  action  of  the  arbi- 
trator, consequently,  left  him  just  where  he  was  before. 
To  say  that  it  "disposed"  of  the  issue  submitted,  therefore,  is 
to  trifle  with  language.  And  if  it  failed  to  dispose  of  that 
issue  it  was  not  a  bar  to  this  proceeding.  For  under  the 
law  in  force  here,  which,  in  the  absence  of  contrary  proof, 
is  presumed  ^^  to  be  the  same  as  that  of  Japan  where  the 
arbitration  was  held, 

The  award  must  be  such  a  disposition  of  the  matters  submitted 
that  nothing  further  remains  to  fix  the  rights  and  obligations  of  the 
parties,  that  the  party  against  whom  it  is  made  can  perform  or  pay 
it  without  any  further  ascertainment  of  rights  or  duties,  and  that 
further  litigation  shall  not  be  necessary  in  order  to  adjust  the  matters 
submitted." 

Defendant's  counsel  contends  that  the  phrase  last  above 
quoted  from  the  report  of  the  arbitrator  was  not  a  delega- 
tion of  authority  because  he 

"undoubtedly  meant  that  Steele  had  no  case  against  the  American 
Trading  Co.  of  Maine  and  that  he  should  proceed  to  San  Francisco 
and  try  to  settle  the  matter  with  Mr.  Ward." 

If  that  is  what  he  meant  he  chose  an  unfortunate  mode  of 
expressing  it.  For  the  arbitrator's  report  contains  no  in- 
timation that  he  considered  plaintiff  "had  no  case  against" 
defendant.  If  so  why  was  "the  matter  of  the  three  year 
contract"  (which  was  with  defendant  alone)  to  be  "re- 
ferred    *     *     *     for  settlement'"?     Since  a  "settlement" 

"  See  the  writer's  "Foreign   Laws,"  Am.  &  Eng.  Encyc.  of  Law 
(2nd  ed.)   XUI,  1061. 
"  Corpus  Juris,  V,  139. 


976  I  EXTRATERRITORIAL  CASES. 

of  that  matter  was  considered  necessary  there  must  have 
been  something  to  "settle" — i.  e.,  a  "case." 

It  is  conceded  that  the  arbitrator  could  not  delegate  his 
authority  to  Mr.  Ward  or  any  one  else.^-  But  if  he  did 
not  attempt  to  do  so  it  was  only  because  his  language 
amounted  to  nothing  more  than  an  expression  of  opinion 
or  suggestion  in  which  case  it  was  not  an  award  at  all.'^ 
If  he  did  not  expressly  say  "I  refer  the  matter  to  Mr. 
Ward"  he  likewise  did  not  say  "I  award  plaintiff  this"  and 
"I  reject  or  dismiss  his  claim  as  to  that." 

We  find  no  defect  in  the  replication  as  regards  the  alleged 
award.  Its  averment  that  the  same  "is  void  and  of  no 
effect  and  not  binding  on  plaintiff"  seems  not  only  sufficient 
as  a  pleading  but  in  accordance  with  the  facts  and  the  law. 

IV. 

Under  his  original  agreement  plaintiff's  compensation 
was  "not  to  be  less  than  $10,000  for  the  entire  period  of 
three  years."     In  his  brief  (p.  27)  he 

"Admits  having  received  the  equivalent  of  Gold  $2,500  on  account 
of  the  contract  which  leaves  a  balance  of  G.  $7,500  which  the  plain- 
tiff could  have  earned  if  he  had  not  been  wrongfully  discharged." 

The  rule  established  for  this  jurisdiction  in  actions  for 
breach  of  contract  is  that 

"the  amount  which  would  have  been  received  if  the  contract  had 
been  kept  is  the  measure  of  damages  if  the  contract  is  broken."  " 

And  where,  as  here,  the  "cause  of  action  was  not  for 
wages   but   for   damages   for  breach   of  the   contract,"  ^^ 

"Id.  142. 

"Lock  V.  Vulliamy,  5  B.  &  Ad.  600,  27  E.  C.  L.  255  (110  Reprint, 
912). 

"Benjamin  v.  Hillard,  23  How.  (U.  S.)  149,  16  L.  ed.,  518  (quoting 
Alder  v.  Keighly,  15  M.  &  W.,  117;  Hadley  v.  Baxendale,  9  Exch. 
341) ;  Pierce  v.  R.  Co.,  173  U.  S.  1,  43  L.  ed.,  591.  "The  amount  of 
the  agreed  wages  may  be  taken  as  the  measure  of  damages  prima 
facie."  Saxonia  etc.  Co.  v.  Cook,  7  Colo.  569,  4  Pac.  1111,  quoted  with 
approval  in  Alaska  etc.  Co.  v.  Chase,  128  Fed.  889. 

"Alaska  etc.  Co.  v.  Chase,  128  Fed.  886,  889. 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.   20,    1920.     977 

prospective    damages — even    those    to    accrue    after    the 
trial  ^"^ — may  be  included. 

Defendant's  counsel  cites  decisions  ^'  of  certain  state 
Courts  to  the  contention  that 

"plaintiff  must  not  only  allege  but  must  prove  a  willingness  to 
perform  and  also  that  he  has  been  unable  to  get  other  employment." 

But  the  Appellate  Court,  in  the  principal  case  ^®  already 
cited,  where  there  was  no  averment  of  inability  "to  get 
other  employment,"  has  adopted  a  diiferent  rule,  quoting 
a  well  known  commentator  who  states  it  as  follows : 

"The  burden  of  proof  is  on  the  defendant  to  show  that  the  plain- 
tiff might  have  obtained  other  employment;  for  the  failure  of  the 
plaintiff  to  obtain  other  employment  does  not  affect  the  right  of 
action,  but  only  goes  in  reduction  of  damages,  and  if  nothing  else 
is  shown,  the  plaintiff  is  entitled  to  recover  the  contract  price  upon 
proving  the  defendant's  violation  of  the  contract,  and  his  own  willing- 
ness to  perform."" 

We  are  unable  to  find  that  defendant  in  the  case  at  bar 
has  assumed  this  burden.  Its  agent  at  Shanghai  states 
(p.  25)  that  "it  should  be  easy"  for  a  man  of  plaintiff's 
qualifications  and  experience  to  obtain  a  position  here.  But 
plaintiff  testified    (pp.  66  et  seq.)   that  he  had  advertised 

"  American  China  Development  Co.  v.  Boyd,  148  Fed.  258  (on 
appeal  from  the  Consular  Court  for  the  District  of  Shanghai  and  very 
similar  to  the  case  at  bar)  citing  Hochster  v.  De  la  Tour,  2  El.  & 
Bl.  678;  Rhoades  v.  R.  Co.,  49  W.  Va.  500,  39  S.  E.  209.  The  first 
case  fixes  the  law  for  this  jurisdiction  regardless  of  the  earlier  cases 
of  Schroeder  v.  Trading  Co.,  95  Fed.  296  and  Darst  v.  Alkali  Works, 
81  Fed.  284,  cited  by  defendant  and  which  limit  recovery  to  date  of 
trial. 

^'Kentucky.  Shepherd  v.  Gambill,  96  S.  W.,  1104;  Lewis  Co.  v. 
Scott,  95   Ky.  484,  26   S.  W.  192. 

Mississippi.  Hunt  v.  Crane,  33  Miss.  669,  holding  that  where 
plaintiff  "obtains  employment,  the  presumption  is,  that  he  gets  the 
best  wages  he  can;  because  the  strong  inducement  of  self  interest 
would  impel  him  to  do  so,  and  the  idea  is  most  unreasonable,  that  he 
did  not  act  accordingly." 

Texas.  Gulf  etc.  R.  Co.  v.  Jackson,  29  Tex.  Civ.  App.  342,  69 
S.  W.   89. 

"  American  China  Development  Co.  v.  Boyd,  148  Fed.  258. 

"  Sedgwick,  Damages,  (9th  ed.)  II,  sec.  667. 

14008  O.  W. 62 


978  I  EXTRATERRITORIAL  CASES. 

in  the  newspapers  and  "had  applied  to  over  60  firms  here 
personally."  He  stated  that  he  could  probably  obtain  a  sub- 
ordinate position  as  bookkeeper  but  intimates  (p.  68)  that 
to  accept  it  would  cause  him  to  lose  standing  as  an  account- 
ant which  any  one  familiar  with  conditions  in  Shanghai 
can  well  understand.  We  cannot  think  that  a  party,  whose 
contract  has  been  broken,  is  obliged,  in  order  to  reduce  his 
adversary's  damages,  to  accept  employment  which  would 
affect  injuriously  his  own  future  career.  And  while,  as  we 
have  seen,  it  was  not  incumbent  on  plaintiff  to  prove  that 
he  had  sufficiently  sought  other  employment  we  think  he 
has  done  so  even  more  satisfactorily  than  did  the  corre- 
sponding party  who  held  the  burden  of  proof  in  one  of  the 
cases  which  defendant  cites  and  where  the  court  said : 

"While  the  evidence  as  to  appellee's  efforts  to  secure  other  em- 
ployment, and  as  to  what  portion  of  the  time  covered  by  the  contract 
he  was  unable  to  secure  other  employment,  is  meager  and  somewhat 
unsatisfactory,  we  cannot  say  that,  in  the  absence  of  any  contra- 
dictory evidence  on  the  part  of  appellant,  it  was  too  indefinite  and 
uncertain  to  support  a  finding  for  any  wages  due  under  the 
contract."  =" 

The  complaint  alleges 

"That  the  Defendant  Corporation  agreed  to  pay  the  Plaintiff 
the  aforesaid  Ten  Thousand  Gold  Dollars  ($10,000)  at  an  exchange 
rate  of  Fifty  Five  Gold  Cents  to  the  Tael,  and  Seventy  Two  Tael 
Cents  to  the   Dollar  Mexican    ($1)." 

But  in  their  brief  (p.  26)  counsel  frankly  admit  that  "re- 
garding the  question  of  exchange  there  is  more  or  less  un- 
certainty" and  that  in  the  original  contract  "nothing  was 
said  about  exchange."  The  chief  support  of  the  averment 
above  quoted  is  that  part  of  plaintiff's  testimony  where  he 
relates  an  interview  in  San  Francisco,  after  his  original 
agreement  was  executed,  with  the  Shanghai  agent  of  de- 
fendant. 

We  do  not  find  it  necessary  to  resolve  the  question  of 
veracity  between  these  two  witnesses  as  to  the  authorship 
of  the  memorandum  of  figures   (Ex.  "E")   mentioned  by 


"Gulf  etc.  R.  Co.  V.  Jackson,  29  Tex.   Civ.  App.   342,  69  S.  W. 
89,  91. 


STEELE  V.  AMERICAN  TRADING  CO.,  APR.   20,    1920.     979 

plaintiff.  Regardless  of  who  wrote  them  the  figures  throw 
very  little  light  on  the  crucial  question  whether  the  Shang- 
hai agent  did  actually  assume,  in  behalf  of  the  defendant 
company  (even  supposing  he  had  such  authority) ,  to  make 
the  alleged  rate  of  exchange  a  part  of  plaintiff's  contract 
and  to  pledge  defendant's  liability  therefor.  We  doubt  if 
plaintiff's  own  testimony,  standing  alone,  shows  that  he  did, 
or  discloses  anything  more  than  information  given  by  the 
agent  as  to  what  the  salary  would  be  if  the  alleged  rate  were 
agreed  upon.  To  prove  a  contract  for  that  rate  it  must 
appear  that  the  minds  of  both  parties  actually  met  thereon  -^ 
and  in  the  light  of  the  whole  testimony  that  seems  more 
than  doubtful. 

It  must  be  remembered  in  this  connection  not  only  that 
another  agent  was  then  in  charge  at  Shanghai  but  that  the 
one  with  whom  the  interview  was  held  opposed  (pp.  18,  20) 
plaintiff's  employment.  Indeed  the  latter's  counsel  in  their 
brief  (p.  13)  stress  this  fact  as  the  real  ground  for  plain- 
tiff's dismissal.  Is  it  reasonable  to  suppose,  then,  that 
said  agent  would  voluntarily  undertake  to  supply  a  feature 
of  plaintiff's  contract  which  he  knew  had  been  omitted  by 
his  company  and  which  would  amount  to  more  than  doubling 
plaintiff's  salary? 

But  the  interview  did  apprise  plaintiff  of  the  importance 
of  adding  such  a  clause  and  he  was  then  still  in  San  Fran- 
cisco where  the  contract  was  made  and  where  it  could 
have  been  modified  had  such  been  the  purpose  of  both  par- 
ties. Nay,  more,  when  plaintiff  reached  Japan  the  second 
agreement,  which  he  there  accepted,  specifically  fixed  the 
rate  of  exchange  altho  if  plaintiff's  theory  of  an  existing 
verbal  contract  were  correct  that  would  have  been  unneces- 
sary except  so  far  as  to  apply  the  agreed  rate  to  Japanese 
currency.  We  repeat  as  to  plaintiff  what  we  have  already 
said  in  effect  of  defendant  that  courts  cannot  make  con- 
tracts for  parties. 

The  Court  finds  that  plaintiff  is  entitled  to  recover  as 
damages  for  breach  of  his  contract,  as  found  above,  the 

"  Shanghai  Tannery  Co.,  Ltd.  v.  American  Trading  Co.,  ante 
p.  576. 


980  I  EXTRATERRITORIAL  CASES. 

unpaid  balance  of  his  guaranteed  compensation,  to-wit  the 
sum  of  seventy-five  hundred  dollars  ($7,500),  U.  S.  cur- 
rency, less  the  item  of  fifty  dollars  ($50),  Mexican  currency, 
which  plaintiff  admits  (p.  74)  having  earned  meanwhile. 
It  is  accordingly  considered  and  adjudged  that  plaintiff 
have  and  recover  from  defendant  the  said  sum,  less  the 
said  item,  together  with  his  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Mencarini  &  Co.,  Plaintiff,  v.  A.  F.  Thane  &  Co., 
Defendant. 

[Cause  No.  982;   filed  May  12,  1920.] 

SYLLABUS. 

(By  the  Court.) 

1.  CONTRACTS:  TIME  OF  PERFORMANCE.     The  doctrine  of  Connell  Bros. 

Co.  V.  H.  Diederichsen  &  Co.,  ante,  pp.  297,  333,  applied. 

2.  Id.  :    Id.  :    Sales.     Where   a   vendee   stipulates   for   delivery   during 

February  and  expressly  states  that  he  will  not  accept  thereafter 
he  is  not  normally  liable  for  goods  tendered  in  March, 

3.  Id.  :    Id.  :    Force  Majeure.     Delay  in   shipment  found   not  due  to 

force  majeure. 

Paul  Myron  Lineharger,  Esq.,  for  plaintiff. 
Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  By^yan,  for  de- 
fendant. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  the  sum  of  Tls.  6,120  as  the 
purchase  price  of  a  cargo  of  walnuts  which  plaintiff  alleges 
it  "delivered"  to  defendant  "in  conformance  with"  a  con- 
tract previously  entered  into  between  the  parties  and  which, 
it  is  further  alleged,  "the  defendant  in  violation  of  his 
contract  refused  to  accept."  Defendant  denies  these  aver- 
ments, and  the  sole  question  presented  is  whether  there 
was  such  delivery  as  is  here  alleged. 

It  appears  that  there  had  been  two  previous  contracts 
between  the  parties,  the  second  of  which  required  "ship- 
ment: late  November,  1919."  This  period,  it  is  conceded, 
was  extended,  eventually,  until  January  9,  1920 ;  but  the 


MENCARINI  &  CO.  V.  THANE  &  CO.,  MAY  12,  1920.        981 

delivery  in  question  is  not  claimed  to  have  been  made  under 
any  of  these  extensions  but  by  virtue  of  a  later  agreement 
evidenced  by  a  letter  of  February  16  from  defendant  to 
plaintiff  stating 

"We  now  beg  to  advise  you  that  we  will  accept  the  70  tons  of 
walnuts  which  you  state  are  being  made  ready  for  shipment  in 
Tientsin  if  shipped  by  direct  steamer  to  San  Francisco  during  the 
month  of  February,  but  we  will  not  accept  them  if  trans-shipped  at 
Kobe,  or  any  other  port,  or,  if  shipjjed  after  the  29th  day  of  Feb- 
ruary."     (Ex.   D.) 

Plaintiff's  representative  states  that  the  cargo  in  ques- 
tion was  ready  for  shipment  by  February  15  at  which 
date  he  engaged  space  on  the  "Stanley  Dollar,"  scheduled 
to  sail  from  Taku  Bar  on  February  26,  for  San  Francisco. 
It  did  not  in  fact  sail  until  March  5  and  the  cargo  was 
not  loaded  until  March  4.  On  March  10  defendant  was 
notified  of  the  shipment  and  on  the  same  day  it  replied, 
declining  to  accept  delivery. 

There  is  no  question  as  to  the  good  faith  of  either  party; 
but  plaintiff  claims  that  it  was  unable  to  comply  with  the 
requirement  to  ship  "by  direct  steamer  to  San  Francisco 
during  the  month  of  February"  and  that  having  done  its 
utmost  to  meet  that  requirement  the  delay  in  shipment 
should  be  excused.  On  the  other  hand  defendant  relies  on 
the  principle  that  "in  the  contracts  of  merchants,  time  is 
of  the  essence"  ^  and  its  manager  testifies  that  the  reason 
for  fixing  the  limit  at  February  29  was  to  insure  delivery 
in  San  Francisco  before  April  1,  since  arrival  later  would 
require  the  cargo  to  be  classed  as  last  season's  crop  and 
necessitate  a  reduction  in  price. 

Unfortunately  for  plaintiff's  contention,  the  Court  of 
Appeals  has  decided  adversely  a  very  similar  case,^  where 
even  the  phraseology  and  the  dates  were  almost  identical. 
There  the  vendor  contracted  to  ship  flour  for  the  defendant 
"during  the  month  of  February,  1912."  As  further  stated 
by  the  Court,^ 

'  Norrington  v.  Wright,  115  U.  S.  188,  29  L.  ed.  366. 

'  Connell  Bros.  Co.  v.  H.  Diederichsen  &  Co.,  ante,  pp.  297,  333. 

^Ante,  p.  337, 


982  I  EXTRATERRITORIAL  CASES. 

"The  flour  was  not  fully  loaded  until  March  3,  and  the  steamer 
sailed  on  March  8.  It  will  thus  be  seen  that  there  was  a  breach  of 
the  contract  in  respect  to  the  date  of  the  shipment," 

and  a  judgment  against  defendant  on  that  ground  was 
affirmed.  As  in  this  case,  the  original  contract  had  been 
made  in  the  preceding  October  but  there  was  not,  as  here, 
an  express  announcement  by  the  vendor  that  "we  will  not 
accept  *  *  *  j£  shipped  after  the  29th  day  of  Feb- 
ruary." Moreover,  "it  was  well  known  to  both  parties" 
here,  as  in  the  case  cited,  "when  the  agreement  was  en- 
tered into,  that  there  was  no  regular  line  of  transportation 
between"  Tientsin  and  San  Francisco  which  would  insure 
shipment  from  the  former  port  before  the  end  of  February. 
Plaintiff  invokes  in  argument,  tho  it  does  not  plead,  a 
clause  in  the  original  contract  exempting  it  from  all  re- 
sponsibility for  "non-delivery,  delays,  part  delivery,  or  any 
other  occurrences  caused  by  force  majeure"  specifying 
various  casualties  not  here  occurring  "or  other  acts  beyond 
their  control."  Aside  from  the  question  whether  this 
exemption  was  carried  forward  into  the  new  agreement 
evidenced  by  defendant's  letter  of  February  16,  above 
quoted,  a  similar  clause  was  held  insufficient  to  excuse  in 
the  case  ■*  last  referred  to.  Moreover,  it  seems  at  least  doubt- 
ful whether  the  phrase  force  majeure  ^  could  be  applied  to 
the  facts  here  shown.  As  declared  in  the  original  English 
case  ^  on  the  subject, 

*'when  the  party  by  his  own  contract  creates  a  duty  or  charge  upon 
himself,  he  is  bound  to  make  it  good,  if  he  may,  notwithstanding  any 
accident  by  inevitable  necessity,  because  he  might  have  provided 
against  it  by  his  contract." 

There  was  some  testimony  regarding  the  eifect  of  the 
anti-Japanese  boycott  in  Shantung  Province  in  delaying 
prior  shipments  under  the  original  contracts,  but  since, 
according  to  plaintiff's  evidence,  this  particular  cargo  was 
ready  for  shipment  by  February  15,  its  delay  could  in  no 
wise  be  attributed  to  that  cause. 

^  See  a  valuable  note  to  L,  R.  A.  (1916  F)  15  et  seq. 
'Paradine  v.  Jane,  Aleyn,  26    (1647). 


UNITED  STATES  V.  SIN  WAN  PAO  CO.,  MAY  15,  1920.      983 

In  view  of  the  doctrine  announced  by  the  Court  of  Appeals 
we  have  no  alternative  but  to  find  for  the  defendant;  but 
while  a  judgment  cannot  be  rendered  in  plaintiff's  favor, 
it  is  authorized,  in  pursuance  of  the  stipulation  between 
the  parties,  to  dispose  of  the  cargo,  which  has  meanwhile 
arrived  at  San  Francisco,  and  apply  the  proceeds  to  its 
own  use.  There  will  be  no  allowance  of  costs  to  either 
party. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
United  States  v.  Sin  Wan  Pao  Company. 

[Cause  No.  993;  filed  May  15,  1920.] 

SYLLABUS. 
(By  th«  Court) 

1.  CRIMES :    Corporations.     While  it  seems  to  have  been  originally 

doubtful  whether  a  private  corporation  was  subject  to  criminal 
liability  the  later  development  of  the  law  has  removed  such 
doubt. 

2.  Id.  :   Evolution  of  corporate  criminal  liability  traced. 

3.  Id.  :    Penalty.     Since  a  corporation  cannot  be   imprisoned   and  is 

subject  only  to  be  a  fine,  the  latter,  where  both  are  prescribed, 
should  be  a  substantial  one. 

4.  Id.  The  special  duty  of  corporations  enjoying  the  extraterritorial 

privilege,  to  avoid  all  violation  of  law,  commented  on. 

Chauncey  P.  Holcomb,  Esq.,  U.  S.  Dist.  Atty.,  for  the 
prosecution. 

Fleming,  Davies  &  Bryan,  by  Mr.  Fleming,  for  the  de- 
fense. 

LOBINGIER,  J.: 

The  defendant  is  a  corporation  organized  under  the  laws 
of  Delaware  and  registered  at  the  American  Consulate  Gen- 
eral in  Shanghai,  where  it  maintains  and  publishes,  in  the 
Chinese  language,  a  daily  newspaper  of  large  circulation. 
The  information  before  us  charges  it  with  having  "published 
a  notice  stating  where  certain  obscene,  lewd  and  indecent 


984  I  EXTRATERRITORIAL  CASES. 

books  may  be  obtained,"  and  the  District  Attorney  asks  for 
a  conviction  under  the  statute  penalizing 

"Who  (m)  ever  sells,  or  offers  to  sell,  or  give  away  *  *  ♦ 
any  obscene,  lewd,  or  indecent  book,  pamphlet,  drawing,  engraving, 
picture,  photograph,  instrument,  or  article  of  indecent  or  immoral  use, 
or  advertises  the  same  for  sale."  ^ 

The  language  further  set  out  in  the  information  fully 
sustains  the  averment — for  the  mere  titles  of  these  books, 
as  there  translated,  are  unfit  to  be  reproduced  here.  The 
defendant,  by  its  duly  authorized  attorney,  enters  a  plea 
of  guilty  but  at  the  same  time  explains  that  the  advertise- 
ment of  the  books  was  accepted  for  publication  and  inserted 
in  the  paper  by  a  Chinese  employee  without  the  knowledge 
of  the  directors,  who  are,  it  is  but  fair  to  state,  gentlemen  of 
excellent  reputation. 

But,  notwithstanding  the  plea  of  guilty,  we  must,  before 
imposing  sentence,  determine  whether  the  offense  is  one 
which  the  corporation,  as  such,  could  commit  or  whether 
the  individuals  composing  it  are  alone  subject  to  prosecu- 
tion. For  the  capacity  of  a  corporation  to  commit  crime 
is  not  the  same  as  that  of  a  natural  person.  Indeed  there 
was  a  time  in  the  history  of  our  law  when  it  was  at  least 
doubtful  whether  such  a  prosecution  as  this  would  lie  at 
all;  and  its  evolution  from  that  stage  forms  an  instructive 
chapter  in  legal  development.^ 

It  is  little  more  than  two  centuries  now  since  Lord  Holt 
uttered,  as  reported,=^  his  famous  dictum  that  "a  corporation 
is  not  indictable  but  the  particular  members  of  it  are." 
So  Blackstone,'  writing  two  generations  later,  declares  that 

'  Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  Ch. 
854,  sec.  872. 

*  "The  doctrine  of  holding  corporations  responsible  for  violation 
of  penal  laws  is  one  developed  by  gradual  evolution;  but  it  ia  nona 
the  less  the  law,  and  is  of  healthful  necessity  and  utility."  Southern 
Express  Co.  v.  State,  1  Ga.  App.,  700,  58  S.  E.  67.  Compare  Com. 
V.  Pulaski  Co.  Agr.  Ass'n.,  92  Ky.  197,  17  S.  W.  442. 

=  Anonymous,  12  Mod.  559  (1701). 

*  Commentaries,  I,  476. 


UNITED  STATES  V.  SIN  WAN  PAO  CO.,  MAY  15,  1920.      985 

"a  corporation  cannot  commit  treason,  or  felony  or  other  crime  in  its 
corporate  capacity." 

It  was,  indeed,  recognized  early  that  quasi  corporations, 
like  towns  and  counties,  were  subject  to  prosecution  for 
neglect  of  duties  imposed  by  law.^  But  so  late  as  1823  the 
highest  court  of  Virginia,  in  considering  an  information 
charging  a  Turnpike  Company, 

"in  their  corporate  character,  with  a  nuisance  in  obstructing  a 
common  public  highway  and  road,  by  digging  it  up,  and  placing 
therein  large  quantities  of  stone  and  dirt,  whereby  the  citizens  of  the 
Commonwealth  were  hindered  from  passing  and  traveling  on  the 
same;  to  their  great  damage  and  common  nuisance,'" 

was 

"unanimously  of  opinion,  that  a  Corporation,  such  as  the  President, 
Directors  and  Company  of  the  Swift  Run  Gap  Turnpike  Company, 
cannot  be  impleaded  by  its  artificial  name  for  the  criminal  offense 
stated  in  the  information." ' 

In  1841  the  Supreme  Court  of  Maine  sustained  exceptions 
to  the  conviction  of  a  corporate  defendant  for  maintaining 
a  nuisance,  saying 

°"Regina  v.  The  County  of  Wilts,  1  Salk  359;  The  Queen  v.  The 
Inhabitants  of  Cluworth,  6  Mod.  163,  S.  C;  1  Salk.  359,  and  in  the 
Queen  v.  Saintiff,  6  Mod.  255,  Lord  Holt  himself  held,  that  if  a 
common  footway  be  in  decay,  an  indictment  must  of  necessity  lie  for 
it,  because  an  action  will  not  lie  without  a  special  damage.  It  seems 
to  be  true,  moreover,  was  stated  by  Talfourd,  Sergeant,  Arguendo,  in 
the  Queen  v.  Railway  Co.,  3  Queen's  Bench,  227,  that  altho  there  was 
at  that  time  no  direct  authority  in  England  for  the  position  that  a 
corporation  aggregate  is  indictable  in  the  corporate  name,  yet  the 
course  of  precedents  has  been  uniform  for  centuries,  and  the  doctrine 
has  frequently  been  taken  for  granted,  both  in  arguments  and  by 
the  judges.  The  case  of  Langforth  Bridge  Cro.  Car.  565  (1635) ; 
Regina  v.  The  Inhabitants  of  Wilts,  1  Salk,  359  (1705)  ;  The  King  v. 
Inhabitants  of  the  West  Riding  of  Yorkshire,  2  Blac.  Rep.  685  (1770)  ; 
Rex  V.  The  Inhabitants  of  Great  Boughton,  5  Burr.  2700  (1771)  ;  The 
King  V.  The  Inhabitants  of  Clifton,  5  D.  &  E.  499  (1784)  ;  Rex  v. 
The  Corporation  of  Liverpool,  3  East  86  (1802)  ;  Rex  v.  Mayor  of 
Stratford  upon  Avon,  14  East  348  (1811)  ;  Rex  v.  The  City  of  Glou- 
cester, Dougherty's  Crown  Circ.  Ass.  359."  Chief  Justice  Green  in 
State  V.  R.  Co.,  23  N.  J.  L.  364,  365  (1852). 

'  Com.  V.  Turnpike  Co.,  2  Va.  Cas.  362. 

^Id. 


986  I  EXTRATERRITORIAL  CASES. 

"We  have  been  referred  to  no  precedent  where  an  indictment  has 
been  sustained  against  a  corporation,  upon  such  a  charge;  and  in 
our  opinion,  the  individuals  concerned  and  not  the  corporation,  must 
be  held  criminally  answerable  for  what  has  been  done."" 

And  so  late  as  1864  the  Supreme  Court  of  Indiana "  up- 
held the  dismissal  of  a  prosecution  against  a  railway  com- 
pany for  obstructing  a  highway.  Meanwhile,  however,  it 
was  held  in  England  that  a  private  railway  corporation 
was  indictable  for  an  act  of  nonfeasance  in  disregarding 
a  statute  ^°  and  shortly  afterward  an  indictment  of  such  a 
corporation  for  obstructing  a  highway,  was  upheld. ^^ 
These  English  decisions  have  been  generally  followed  in 
the  United  States. ^- 

*  State  V.  Great  Works  Co.,  20  Me.  41,  where  it  was  further  ob- 
served : 

"A  corporation  is  created  by  law  for  certain  beneficial  purposes. 
They  can  neither  commit  a  crime  or  misdemeanor,  by  any  positive 
or  affirmative  act,  or  incite  others  to  do  so,  as  a  corporation.  While 
assembled  at  a  corporate  meeting,  a  majority  may,  by  a  vote  entered 
upon  their  records,  require  an  agent  to  commit  a  battery;  but  if  he 
does  so,  it  cannot  be  regarded  as  a  corporate  act,  for  which  the  cor- 
poration can  be  indicted.  It  would  be  stepping  aside  altogether  from 
their  corporate  powers.  If  indictable  as  a  corporation  for  an  offence, 
thus  incited  by  them,  the  innocent  dissenting  minority  become  equally 
amenable  to  punishment  with  the  guilty  majority." 

This  decision  was  expressly  overruled  in  State  v.  Portland,  74  Me. 
268,  43  Am.  Rep.,  586,  which,  however,  was  against  a  municipal 
corporation. 

'  State  V.  Ohio  &  Miss.  R.  Co.,  23  Ind.  363. 

'"  Reg.  V.  Birmingham  &  Gloucester  Ry.  Co.,  3  Q.  B.  223,  11  L.  J. 
M.  C.  134. 

"■  Reg.  V.  Great  North  of  England  Ry.  Co.  9  Q.  B.  315,  2  Cox  C.  C. 
70,  7  Eng.  R.  C.  466   (1846). 

"Cyc.  X,  1326    (14),  1227    (19). 

"Experience  showed  the  necessity  of  modifying  the  old  rules;  and 
the  decided  tendency  of  modern  decision  has  been  to  extend  the  ap- 
plication of  all  legal  remedies,  both  civil  and  criminal,  to  corporations, 
and  subject  them  thereto  as  in  the  case  of  individuals,  so  far  as 
is  possible."  Com.  v.  Pulaski  Co.  Agr.  Assn.,  92  Ky.  197,  17  S.  W. 
443.  Compare  So.  Express  Co.  v.  State,  1  Ga.  App.  700,  52  S.  E. 
67. 


UNITED  STATES  V.  SIN  WAN  PAO  CO.-,  MAY  15,  1920.      987 

There  was  once  a  tendency  to  exclude  crimes  which  "in- 
volve a  criminal  or  immoral  intent."  ^^  But  the  latest  de- 
cisions have  passed  beyond  that  limit."  Thus  a  private 
corporation  has  been  held  subject  to  prosecution  for  crim- 
inal libel/^  keeping  a  disorderly  house,^'^  permitting  gam- 
bling/' violating  the  liquor  laws/**  and  depositing  obscene 
matter  in  mails. ^'^ 

"  X,  1231,  Englayid.  "Nobody  has  sought  to  fix  them  with  acts  of 
immorality.  These  plainly  derive  their  character  from  the  corrupted 
mind  of  the  person  committing  them,  and  are  violations  of  the  social 
duties  that  belong  to  men  and  subjects.  A  corporation  which,  as 
such,  has  no  such  duties,  cannot  be  guilty  in  these  cases."  Lord 
Denman,  C.  J.,  in  Reg.  v.  Great  North  of  England  Ry.  Co.,  9  Q.  B. 
315,  2  Cox,  C.  C.  70,  7  Eng.  Rul.  Cas.  466. 

United  States.  U.  S.  v.  MacAndrews  &  Forbes  Co.,  149  Fed.  823 
where  the  court  says: 

"Authority  is  still  producible,  however,  for  the  dogma  that  cor- 
porations cannot  be  indicted  for  offenses  which  derive  their  criminal- 
ity from  evil  intention  (Commonwealth  v.  Proprietors  of  New  Bedford 
Bridge,  2  Gray  [Mass.]  339),  nor  for  any  crime  of  which  a  corrupt 
intent  or  malus  animus  is  an  essential  ingredient  (State  v.  Morris 
&  Essex  Ry.,  23  N.  J.  Law,  360)." 

"  Federal.  "I  think  this  is  but  the  remnant  of  a  theory  always 
fanciful  and  in  process  of  abandonment."  Hough,  J.,  in  U.  S.  v. 
MacAndrews  &  Forbes  Co.,  149  Fed.  835. 

Massachusetts.  "We  think  that  a  corporation  may  be  liable  crim- 
inally for  certain  offenses  of  which  a  specific  intent  may  be  a  neces- 
sary element.  There  is  no  more  difficulty  in  imputing  to  a  corporation 
a  specific  intent  in  criminal  proceedings  than  in  civil."  Telegram 
Newspaper  Co.  v.  Com.,  172  Mass.  293,  52  N.  E.  445,  44  L.  R.  A., 
159,  70  Am.  St.  Rep.  280. 

"  Massachusetts.  Telegram  Newspaper  Co.  v.  Com.,  178  Mass. 
294,  52  N.  E.  445,  44  L.  R.  A.  159,  70  Am.  St.  Rep.  280. 

New  York.  People  v.  Star  Co.,  135  App.  Div.  517,  120  N.  Y. 
498. 

Tennessee.  State  v.  Atchison,  71  Tenn.  729;  Banner  Pub.  Co.  v. 
State,  16  Lea,  176,  57  Am.  Rep.,  214. 

'"  State  v.  Passaic  Co.  Agr.  Soc,  54  N.  J.  L.,  260,  23  Atl.  680. 

"  Com.  V.  Pulaski  Co.  Agr.  Asso.,  92  Ky.  197,  17  S.  W.  442. 

^'Federal.    Joplin  Mercantile  Co.  v.  U.  S.,  213  Fed.  926. 

Georgia.     So.  Express  Co.  v.  State,  1  Ga.  App.  700,  58  S.  E.  67. 

"U.  S.  v.  N.  Y.  Herald  Co.,  159  Fed.  296,  quoting  U.  S.  v.  Mac- 
Andrews  &  Forbes  Co.,  149  Fed.  835. 


988  I  EXTRATERRITORIAL  CASES. 

In  all  of  these  acts  (which  are  but  a  few  of  those  included) 
there  would  seem  to  have  been  as  much  or  more  exercise 
of  criminal  intent  as  is  required  in  order  to  commit  the 
offense  here  charged  and  we  see  no  escape  for  defendant  in 
that  direction. 

II. 

The  remaining  question  involves  the  penalty.  The  stat- 
ute -"  prescribes  a  maximum  term  of  imprisonment  for  one 
year  or  a  fine  of  $500,  with  a  minimum  of  $50.  Were  de- 
fendant a  natural  person  some  imprisonment  would  seem 
to  be  necessary.  For  the  published  matter,  while  not  ex- 
tensive, is  demoralizing  in  the  extreme  and  whoever  is 
actually  responsible  for  it  made  use  of  the  protection  af- 
forded him  by  American  registry.  It  will  not  do  to  permit 
that  to  become  a  means  of  evading  adequate  punishment. 
The  number  of  American  corporations  in  China  has  greatly 
increased  of  late,  nearly  forty  having  been  organized  under 
the  Act  of  Congress  of  March  2, 1903.  If  all,  or  even  a  part, 
of  these  were  to  escape  the  proper  consequences  of  the 
violation  of  law  on  the  ground  that  the  same  were  actually 
committed  by  Chinese  employees  the  result  would  be  serious 
indeed.  If  the  increase  of  American  corporations  in  China 
is  to  continue,  and  is  to  receive  official  encouragement,  it 
is  only  upon  the  condition  that  they  conform  to  our  best 
national  standards.  And  especially  in  a  matter  like  this, 
where  the  morals  of  the  Chinese  public  are  so  gravely  af- 
fected, the  standards  can  be  none  too  high  and  the  care 
exercised  none  too  sedulous. 

Nor  is  it  a  legal  excuse  that  the  directors  of  the  defendant 
corporation  did  not  personally  know  of  the  objectionable 
publication.  In  legal  contemplation  they  were  bound  to 
know.  As  was  said  by  Federal  Judge  Hough,  of  the  south- 
ern district  of  New  York,  in  a  somewhat  similar  case : 

"To  fasten  this  species  of  knowledge  upon  a  corporation  requires 
no  other  or  different  kind  of  legal  inference  than  has  long  been  used 
to  justify  punitive  damages  in  cases  of  tort  against  an  incorporated 
defendant.     If  a  corporation  can  corporately  know  that  an  engineer  is 

'"Act  of  Congress  of  March  3,  1901,  31  U.  S.  Stats,  at  Large,  Ch. 
854,  sec.  872. 


ORIENTAL  PRESS  V.  ROBERT  DOLLAR  CO.,  MAY  18,  1920.   989 

an  habitual  drunkard,^^  it  can  even  more  surely  know  the  ordinary 
contents  of  a  newspaper  the  publication  of  which  is  its  reason  for 
existence.'^ 

The  defendant  cannot  be  imprisoned  and  the  more  serious 
portion  of  the  penalty  is  therefore  excluded  from  considera- 
tion. In  view  of  this  we  agree  with  the  District  Attorney 
that  the  fine  should  be  a  substantial  one  and  we  fix  it  at 
$250  U.  S.  currency  which  sumi,  together  with  the  costs  of 
this  prosecution,  defendant  is  accordingly  sentenced  to  pay. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Oriental  Press,  Plaintiff,  v.  Robert  Dollar  Co., 
Defendant. 

[Cause  No.  806;  filed  May  18,  1920.] 

SYLLABUS. 

(By  the  Court.) 

1.  WAREHOUSEMEN;  DEFINED.     A  shipper  who  regularly  stores  cargo 

for  profit  is  a  "warehouseman"  within  the  meaning  of  the  ware- 
house Receipts  Act. 

2.  Id.  :   Id.  :   Lien.     A  warehouseman's  lien,  at  common  law,  attached 

only  to  the  specific  property  for  which  the  storage  charge  was 
imposed. 

3.  Id.:  Id.:  But  by  Said  Statute,  which  is  in  force  in  this  jurisdic- 

tion, the  lien  for  such  charge  attaches  to  other  goods  of  the 
same  bailor  "whenever  deposited." 

4.  Id. :   Id.:   Charges:   A  General  Custom  among  warehousemen  in 

Shanghai  to  charge  a  month  storage  on  goods  left  more  than 
ten  days,  will  be  enforced  in  the  absence  of  a  showing  of  un- 
reasonableness. 

/.  Em.  Lemiere,  Esq.,  for  plaintiff. 
Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Brijan,  for  de- 
fendant. 

LOBINGIER,  J.: 

This  is  an  action  to  recover  back  a  payment  by  plaintiff 
to  defendant  of  Tls.  659.80  and  an  additional  sum  as  dam- 
ages for  the  latter's  alleged  refusal  to  release  a  cargo  of 

='  Cleghorn  v.  N.  Y.  Central  etc.  R.  Co.,  56  N.  Y.  44,  15  Am.  Rep. 
375. 

''  U.  S.  V.  New  York  Herald  Co.,  159  Fed.  296. 


990  I  EXTRATERRITORIAL  CASES. 

paper.  No  witness,  who  claims  to  have  been  present  and 
heard  such  refusal,  testifies  thereto,  and  defendant's  wharf 
manager,  who  was  present  and  in  charge  of  deliveries, 
expressly  states  (p.  30)  that  the  cargo  was  not  withheld. 
He  further  testifies,  hojvever,  that  plaintiff's 

"representative  came  up  to  take  delivery  of  it  and  we  said  all  right 
let  it  go  ahead  and  don't  forget  that  you  owe  us  Tls.  659.80  storage 
on  the  Bessie  Dollar  and  I  am  going  to  cover  myself.  You  can  go 
ahead  and  take  delivery — take  this  up  with  your  manager  and  tell 
him  that  if  you  don't  pay  this  amount  before  this  is  all  delivered, 
I  am  going  to  retain  some  of  this  cargo  to  cover  the  amount  of  this 
storage  bill.  Having  told  his  representative  that,  I  phoned  to  the 
Oriental  Press  and  told  Mr.  Bos  the  same  thing.  That  I  think  was 
on  the  9th  of  June.  I  think  on  the  10th  of  June  the  accounting  de- 
partment of  the  Robert  Dollar  Company  phoned  me  that  this  had  been 
paid  and  credited  to  their  account,  and  so  I  said  go  ahead,  and  he 
then  finished  it  up  and  there  was  no  stoppage  at  all." 

The  "Tls.  659.80  storage"  here  referred  to  was  for  a 
cargo  which  had  arrived  some  two  weeks  previously  on 
March  17  and  passed  the  customs  "between  4.20  and  4.30 
p.  m."  on  March  26.  Two  apparently  disinterested  wit- 
nesses, actively  connected  with  the  shipping  business  in 
Shanghai,  corroborate  the  wharf  manager  that,  according 
to  the  custom  prevailing  in  Shanghai  shipping  circles,  the 
ten-day  period  of  free  storage  terminated  on  the  last  named 
date  and  that  thereafter  defendant  was  entitled  to  charge 
for  one  month  storage  as  it  did.  We  do  not  think  this  is 
overcome  by  testimony  that  other  shippers  "if  you  ask  it 
*     *     *     will  grant  you  one  day  sometimes"  (p.  14). 

Defendant  having  the  right  to  impose  the  charge  for 
storage  did  it  also  have  the  right  to  enforce  the  charge  by 
retaining  subsequent  cargo?  Its  counsel  concedes  that  at 
common  law  the  lien  extended  only  to  the  specific  goods 
for  which  the  charge  was  made.^  But  under  a  statute,^ 
admittedly  in  force  in  this  jurisdiction, 

"A  warehouseman's  lien  may  be  enforced  against  all  goods,  when- 
ever' deposited,  belonging  to  the  person  who  is  liable  as  debtor." 

'  Cyc,  XL,  454. 

'  Act  of  Congress  of  April  15,  1910,  36  U.  S.  Stats,  at  Large,  Pt. 
I,  p.  301,  sec.  28. 

This  is  the  statute  adopting  for  Federal  territory  the  Warehouse 
Receipts   Act,  drafted   originally   by   Professor   Samuel   Williston   of 


HONIGSBERG  &  CO.  V.  JONES,  MAY  2  6,  1920.  991 

The  term  "warehouseman"  is  defined  ^  in  the  act  as  "a 
person  la\vfully  engaged  in  the  business  of  storing  goods 
for  profit"  which  would  seem  clearly  to  include  defendant. 
Nor  does  the  exception  *  regarding  negotiable  receipts  apply 
here  for  no  such  receipt  appears  to  have  been  issued.  It 
follows  that  defendant  has  a  lien  on  the  cargo  in  question 
for  storage  charges  on  the  previous  cargo,  altho  the  lien 
on  the  latter  was,  as  plaintiff  claims,  lost  by  its  delivery.^ 
It  follows  also  that  defendant  was  within  its  rights  in 
requiring  payment  of  such  prior  storage  charges  before 
permitting  complete  delivery  of  the  second  cargo. 

Such  being  the  case  the  question  of  what  plaintiff's  dam- 
ages would  have  been  had  such  requirement  been  wrongful 
becomes  purely  academic.  As  defendant's  counsel  points 
out,  however,  there  is  no  evidence  that  the  bill  for  coolie 
hire,  alleged  to  have  been  caused  by  delayed  delivery,  has 
ever  been  paid. 

On  the  whole  we  must  find  for  defendant  and  it  is  ac- 
cordingly considered  and  adjudged  that  plaintiff  take  noth- 
ing by  its  petition  and  that  defendant  recover  its  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

H.  S.  HONIGSBERG  &  Co.,  INC.,  Plaintiff,  v.  Charles  B. 

Jones,  Defendant. 

[Cause  No.  996;   filed  May  26,  1920.] 

SYLLABUS. 
(By  the  Court.) 

1.  CONTRACTS:   FRAUD,  in  making,  defined. 

2,  Id.  :  Id.  :  Rescission  of  a  contract  on  the  ground  of  fraud  requires 

that  all  the  elements  thereof  be  proven. 

Harvard  Law  School  and  others  of  the  National  Conference  of  Com- 
missioners on  Uniform  Laws  (see  their  Proceedings,  1919,  pp.  154 
et  seq.),  beginning  with  1904,  and  now  in  force  in  at  least  44  juris- 
dictions including  all  but  nine  states.  It  thus  represents  the  most 
advanced  legislative  thought  on  the  subject.  But  even  before  its 
enactment  there  were  statutes  which  had  changed  the  common  law 
rule.  See  Stallman  v.  Kimberly,  121  N.  Y.  393,  24  N.  E.  939; 
Kaufman  v.  Leonard,  139  Mich.  104,  102  N.  W.  632. 

•  Id.,  sec.  58. 

*Id.,  sec.  30. 

'Id.,  sec.  29. 


992  I  EXTRATERRITORIAL  CASES. 

3.  Id.  :  Id.  :  Id.  :  A  showing  which  fails  to  establish  that  the  applicant 

relied  on  the  alleged  misrepresentation  to  his  damage,  is  insuf- 
ficient. 

4.  Id.  :   Injunction.     A  clause  in  a  contract  of  employment,  forbid- 

ding the  employee  to  engage,  within  two  years  from  its  termina- 
tion, in  the  service  of  a  competitor  at  a  point  where  the 
employer  has  a  branch  in  China,  is  reasonable  and  enforcible 
by  injunction. 

5.  PLEADING:    AMENDMENTS  after  trial  are  allowed,  as  a  rule,  only 

when  they  do  not  substantially  change  the  cause  of  action  or 
defence. 

Messrs.  Jemigmi,  Fessenden  &  Rose,  by  Mr.  Rose,  for 
plaintiff. 

Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Bryan,  for  de- 
fendant. 

LOBINGIER,  J.: 

In  February  last  at  San  Francisco  the  parties  to  this 
cause  entered  into  a  written  contract  whereby  defendant 
engaged  to  serve  plaintiff  (which  is  a  corporation  engaged 
in  the  sale  and  hiring  of  automobiles), 

"in  the  capacity  of  shop  foreman  in  the  Company's  shops  at  Shang- 
hai, China,  or  at  any  other  places  in  China  at  which  the  said  company 
has  or  may  have  branches  or  in  any  other  capacity  at  the  places  as 
aforesaid  as  the  company  in  its  discretion  may  from  time  to  time 
decide,  for  the  period  of  three  years  beginning  on  the  tenth  day  of 
February,  1920." 

The  contract  fixes  the  salary  at  $350  per  month,  which, 
however,  "may  be  increased  from  time  to  time  in  the  dis- 
cretion of  the  company,"  provides  for  free  "medical  atten- 
tion" during  the  period  of  actual  service  and  that 

"if  the  said  employee  shall  satisfactorily  serve  the  company  *  *  w 
and  upon  expiration  of  said  period  desires  to  return  to  the  United 
States,  the  company  shall  furnish  the  employee  with  first  class  pas- 
sage from  Shanghai  to  San  Francisco  and  will  refund  to  said  em- 
ployee such  amount  as  shall  have  been  paid  by  said  employee  for  the 
passage  of  his  wife  from  San  Francisco  to  Shanghai." 

Defendant  undertakes  on  his  part  that  he 

"will  not  take  employment  with  any  firm,  person  or  corporation,  com- 
peting with   the  said  company  in  any  manner   at   Shanghai,   China, 


HONIGSBERG  &  CO.  V.  JONES,  MAY  26,  1920.  993 

or  in  any  other  place  in  China  where  the  said  company  has  or  may 
have  a  branch  of  its  business,  within  two  years  from  the  expiration, 
or  other  or  sooner  determination,  of  this  agreement." 

It  is  not  claimed  that  plaintiff  has  failed  to  observe  any 
of  these  provisions.  Altho  not  expressly  required  thereby, 
plaintiff,  it  is  admitted,  furnished  both  defendant  and  his 
wife  with  first  class  passage  from  San  Francisco  to  Shang- 
hai and  also  with  additional  money  for  expenses  on  the 
journey  which  was  completed  by  arrival  here  about  March 
10.  On  April  15,  it  is  further  admitted,  defendant  was 
voluntarily  promised  an  increase  of  $25  per  month  and  on 
April  24  he  was  called,  in  company  with  plaintiff's  manager, 
to  the  office  of  the  President,  Mr,  Seitz,  who  testifies  that 
he  had  heard  of  defendant  seeking  other  employment  and 
inquired  if  it  were  true  but  that  defendant  denied  it.  In 
his  testimony,  however,  defendant  admits  that  he  had 
sought  other  employment  and  was  then  negotiating  with 
Dodge  &  Seymour  for  a  position  at  a  salary  of  $625  per 
month.  On  April  26  he  mailed  a  letter  of  resignation  and 
two  days  later  sent  another  (Ex.  A)  asking  for  "a  letter 
confirming  cancellation  of  my  contract."  To  this  plaintiff 
replied  on  May  3,  declining  to  waive  its  rights  thereunder 
or  to  accept  his  resignation  and  on  the  same  day  defendant 
left  its  employ. 

This  action  to  enforce  the  contract  was  commenced  on 
May  10,  1920,  the  petition  setting  out  the  contract  and 
alleging  its  wrongful  breach.  Defendant  answered  admit- 
ting practically  all  the  averments  of  the  petition  except 
that  the  breach  was  wrongful  but  asking  that  the  contract 
"be  set  aside  and  declared  null,  void  and  of  no  effect," 
on  the  ground  that 

"at  the  siting  thereof  the  plaintiff,  thru  its  duly  authorized  agent 
and  attorney,  H.  S.  Honigsberg,  with  full  knowledge  of  the  manner 
of  and  style  in  which  the  said  defendant  had  previously  lived  at  San 
Francisco,  California,  falsely  and  fraudulently  represented  to  said 
defendant  that  a  married  couple  could  live  in  Shanghai  and  China 
in  the  same  manner  and  style  as  he,  the  said  defendant,  and  his  wife 
to  be,  had  been  living  in  San  Francisco,  California,  for  the  sum  of 
$160  per  month." 

14008   O.    W. 63 


994  I  EXTRATERRITORIAL  CASES. 

Plaintiff's  manager  admits  that  he 

"told  Mr.  Jones  that  it  would  cost  him  around  $160  a  month  to  live 
in  Shanghai     *     *     *     as  a  married  man." 

He  denies,  however,  any  knowledge  as  to  defendant's 
"manner  and  style  of  living  in  San  Francisco"  and  explains 
that  he  (the  manager)  referred  to  board  and  lodging  only — 
not  at  a  hotel  nor  in  the  form  of  housekeeping  but  at  one 
of  the  cheaper  boarding  houses  patronized  by  mechanic?. 
He  based  the  statement,  he  says,  upon  the  experience  of  his 
own  employees  who  were  paying  that  amount  for  board  and 
lodging  when  he  left  Shanghai  in  the  previous  October. 
One  of  these  (Watson)  testifies  that  up  to  December  last 
he  was  paying  $150  per  month  for  himself  and  wife,  that 
he  knew  of  another  married  mechanic  who  was  paying  the 
same  and  that  since  then  he  has  been  paying  $165.  Mr. 
Seitz,  the  President  of  the  Company,  corroborates  the  es- 
timate and  while  defendant  states  that  Watson  recently 
told  him  he  was  paying  $185  per  month,  no  foundation  was 
laid  for  impeachment  during  the  examination  of  Watson 
while  the  assailed  statement  of  plaintiff's  manager  relates 
to  an  earlier  period. 

But  the  question  which  we  have  here  to  determine  is  not 
merely  whether  that  statement  was  true.  For,  in  order  to 
justify  the  rescission  of  this  contract,  defendant  must  prove 
not  only  that  it  was  untrue  but  also,  that  it  was,  as  alleged, 
fy^audident.     As  declared  in  the  books, 

"The  general  rule  is  that  to  constitute  actionable  fraud  it  must 
appear:  (1)  That  defendant  made  a  material  representation;  (2) 
that  it  was  false;  (3)  that  when  he  made  it  he  knew  that  it  was 
false,  or  made  it  recklessly,  without  any  knowledge  of  its  truth 
and  as  a  positive  assertion;  (4)  that  he  made  it  with  the  intention 
that  it  should  be  acted  upon  by  plaintiff;  (5)  that  plaintiff  acted  in 
reliance  upon  it;  and   (6)   that  he  thereby  suffered  injury."^ 

All  of  these  elements  then  must  be  established  by  the 
party  who  alleges  fraud — which  is  never  presumed.  With- 
out dwelling  further  upon  the  other  elements  above  set  forth 
let  us  inquire  whether  defendant  has  met  the  burden  of 
proving  numbers  5  and  6.     In  other  words  has  he  estab- 

'Cyc.  XX,  13.     Cf.  Anson,  Contracts  (Huffcut's  ed.)   p.  205. 


I 


HONIGSBERG  &  CO.  V.  JONES,  MAY  26,  1920.  995 

lished,  by  a  preponderance  of  the  evidence,  that  he  "acted 
in  reliance  upon"  the  representation  complained  of  and 
"that  he  thereby  suffered  injury"?  For  without  such  a 
showing  it  would  not  avail  him  to  establish  the  other 
elements. 

Defendant  states  that  he  understood  plaintiff's  manager 
to  mean  that  his  entire  necessary  expenses  in  Shanghai 
would  not  exceed  $150  to  $160  per  month  and  that  it  was 
because  he  so  believed  that  he  accepted  the  employment 
and  came  to  China.  But  he  admits  that  he  did  not  question 
the  manager  as  to  what  the  latter  meant  by  the  phrase 
"living  expenses"  and  other  portions  of  his  testimony  show 
that  he  could  not  reasonably  have  given  the  phrase  as  wide 
a  scope  as  he  claims;  for  he  says 

"on  the  day  after  I  signed  the  contract  he  stated  that  he  would  give 
me  $50  more  on  the  month,  that  he  did  not  think  I  could  get  by  on 
^300." 

But  if  defendant  had  signed  on  the  understanding  that 
all  his  necessary  expenses  would  fall  within  $150  to  $160 
per  month  why  did  he  not  then  and  there  charge  misrepre- 
sentation and  refuse  to  go  to  China  upon  learning  that,  in 
the  manager's  opinion,  he  "could  not  get  by  on  $300"?  For 
the  phrase  "get  by"  is  hardly  less  definite  in  popular  par- 
lance than  "living  expenses."  Again,  a  broad  interpreta- 
tion of  the  latter  phrase  might  include  "medical  attention" 
but  defendant  could  hardly  have  relied  upon  such  an  under- 
standing for  that  item  is  expressly  provided  for  in  the 
contract. 

Moreover  not  only  did  defendant  fail  to  interrogate  the 
manager  as  to  what  he  meant  by  "living  expenses"  but  he 
made  no  inquiries  elsewhere  altho  he  already  knew  in  San 
Francisco  Mr.  Neilson  from  Shanghai  at  whose  mother's 
boarding  house  he  subsequently  lived.  He  states  that  from 
March  10  to  April  1  he  paid  $175  for  board  but  he  does  not 
claim  to  have  charged  plaintiff's  manager  with  having  de- 
frauded him  because  of  the  statement  complained  of.  He 
also  claims  to  have  spent  $400  during  April  but  in  his 
second  letter  of  resignation,  written  almost  at  the  end  of 
the  month,  he  says  nothing  about  having  been  defrauded 


996  I  EXTRATERRITORIAL  CASES. 

or  considering  the  contract  in  any  way  affected  by  said 
statement.  On  the  contrary  he  treats  the  contract  as  fully 
in  force  and  offers  "to  refund  all  expenses  *  *  *  paid 
by  you"  in  order  to  secure  its  cancellation.  His  interview 
with  Mr.  Seitz,  on  April  24,  would  seem  to  have  afforded 
him  an  opportunity  for  placing  before  the  proper  com- 
pany official  the  now  alleged  misrepresentation,  had  he 
relied  on  it  then,  but  Mr.  Seitz  testifies  that  he  did  not 
and  defendant  does  not  claim  that  he  did.  The  manager 
testifies  that  defendant  never  mentioned  the  higher  cost  of 
living  as  a  ground  for  leaving  plaintiff's  employment  and 
defendant  admits  that  when  he  did  leave  on  May  3  he  gave 
as  his  sole  reason  that  his  services  were  not  considered 
satisfactory.  It  is  not  indeed  until  his  letter  of  May  7, 
written  after  he  had  left  and  repudiated  the  contract,  that 
we  find  any  claim  of  misrepresentation.  If  defendant  had 
relied  thereon,  to  the  extent  that  he  now  claims,  it  would 
naturally  have  figured  in  the  controversy  from  the  begin- 
ning; whereas  it  does  not  appear  to  have  been  mentioned 
until  defendant  found  a  chance  to  earn  more  with  Dodge 
&  Seymour. 

Finally,  it  is  to  be  noted  that  the  contract  does  not  call 
for  defendant's  employment  at  Shanghai  alone  but  "at  any 
other  place  in  China  at  which  the  said  Company  has  or 
may  have  branches."  The  testimony  is  undisputed  that 
plaintiff  had  and  has  under  contemplation  the  opening  of 
a  branch  at  Peking  to  which  defendant  was  to  be  sent,  and 
the  cost  of  living  at  Shanghai  could  hardly  have  been  the 
sole,  or  even  the  controlling,  consideration  in  accepting 
employment.  The  burden  is  on  defendant  to  prove  clearly 
his  reliance  on  the  representation  complained  of  and  his 
mere  statement  that  he  relied  thereon  will  hardly  suffice  if 
his  conduct  is  inconsistent  with  such  reliance. 

Again,  does  defendant  show  that  he  was  damaged  by 
the  representation?  Had  he  been  induced  to  give  up  a 
position  to  come  to  Shanghai  on  a  salary  of  $160  per 
month,  under  the  assurance  that  it  would  cover  all  expenses, 
a  very  different  situation  would  have  been  presented;  but 
defendant  does  not  claim  that  any  feature  of  the  contract 


HONIGSBERG  &  CO.  V.  JONES,  MAY  26,  1920.     997 

was  misrepresented.  On  the  contrary  his  compensation, 
which  was  originally  fixed  at  $300  a  month,  was  voluntarily 
increased  to  $350  and  later  to  $375,  whereas  in  San  Fran- 
cisco he  was  receiving,  according  to  his  own  statement,  $50 
per  week  with  certain  perquisites  which  at  best  would 
amount  to  $100,  or  more,  less  than  the  contracted  salary 
in  Shanghai ;  while  according  to  the  witness  Rick,  who  knew 
defendant  in  San  Francisco,  "a  flat  salary  of  $50  a  week" 
was  the  most  he  received.  Defendant  claims,  indeed,  that 
he  was  able  to  save  some  money  in  San  Francisco  but  that 
was  before  his  marriage  which  event  necessarily  changed 
the  whole  situation. 

We  are  not  convinced  that  a  salary  of  $225,  $250  or  even 
$275  per  month  in  San  Francisco  was  better  than  one  of 
$375  in  China  with  free  "medical  attention"  and  travelling 
expenses.  And  unless  we  could  so  find  we  could  not  de- 
termine that  plaintiff"  has  yet  incurred  damages  by  enter- 
ing into  this  contract.  And  as  was  said  by  Federal  Judge 
Severens,  of  the  Eastern  Michigan  District, 

"If  none  (damages)  ever  result  there  is  no  injury  and,  of  course, 
no  action  in  any  form  can  be  maintained."  " 

A  contract  is  not  a  mere  "scrap  of  paper."  It  is  a  solemn 
and  binding  obligation  and  ought  to  be  treated  as  sacred — 
not  only  by  the  parties  thereto  but  by  the  Courts  and  all 
others  who  have  occasion  to  deal  with  it.  Far  better  is  it 
that  individuals  occasionally  incur  inconvenience  or  even 
hardship  than  that  the  inviolability  of  contracts,  upon 
which  rests  the  security  of  the  business  world,  should  be 
impaired. 

There  are,  indeed,  certain  recognized  grounds  upon  which 
a  contract  once  entered  into  may  be  set  aside;  but  these 
are  safeguarded  and  restricted  and  may  be  invoked  only 
by  those  who  are  prepared  to  meet  the  conditions  which  the 
law  imposes.  If,  as  here,  the  application  for  relief  is  based 
on  the  sole  ground  that  a  certain  representation  was  fraud- 
ulent, the  applicant  must  show  by  a  preponderance  of  the 

^  In  re  Pennewell,  119  Fed.  139,  143.  See  also  Kimmans  v. 
Chandler  13  Iowa  327;  Freeman  v.  Venner,  120  Mass.  424. 


998  I  EXTRATERRITORIAL  CASES. 

evidence  that  all  the  elements  of  legal  fraud  are  present. 
We  are  unable  to  find  that  defendant  has  done  so  and  it 
is  unnecessary  to  consider  the  further  question  whether  he 
has  established  any. 

After  the  close  of  the  trial,  and,  indeed,  after  the  argu- 
ments of  counsel,  defendant  asked  leave  to  file  an  amended 
answer  and  counterclaim  setting  up  that  the  contract  "was 
entered  into  by  the  defendant  on  account  of  a  mutual  mis- 
take made  by  the  parties."  But  such  an  amendment  would 
"substantially  change  the  cause  of  action"  set  up  in  defend- 
ant's counterclaim  and  does  not  therefore  come  within  the 
statute  ^  providing  for  amendments.  Moreover  to  allow 
such  an  amendment  now  would  mean  a  retrial  of  the  case 
when  the  facts  must  have  been  quite  as  well  known  to 
plaintiff  at  the  beginning  of  the  recent  trial  as  they  are  now. 

But  the  supplemental  petition  which  plaintiff  tendered 
does  not  so  change  the  cause  of  action,  requires  no  further 
evidence,  and  has  met  no  objection  from  defendant  who 
has  now  had  notice  of  it  for  some  time.  It  amounts  to 
nothing  more,  indeed,  than  the  amplification  of  the  prayer 
from  a  general  to  a  specific  one  asking  for  an  injunction, 
on  the  facts  admitted,  to  prevent  defendant's  contemplated 
breach  of  paragraph  6  of  the  contract.  That  paragraph  is 
explicit  and  enforcible  within  the  doctrine  already  laid 
down  *  by  this  Court,  being  limited  in  time  if  not  in  place. 
In  view  of  defendant's  own  testimony  that,  in  spite  of  it, 
he  has  sought  similar  employment  elsewhere  in  Shanghai 
we  think  that  defendant  is  entitled  to  such  relief. 

It  appears  from  the  evidence  that  plaintiff's  advances  to 
defendant,  and  other  expenses  incurred  in  his  behalf, 
amount  to  about  one  thousand  dollars.  There  are  other 
possible  items  of  damage,  such  as  delay  in  opening  a  branch 
at  Peking,  where  it  was  intended  to  send  defendant,  and 
the  showing  that  plaintiff  has  been  left  shorthanded  by  de- 
fendant's departure,  while  it  will  be  several  months  before 
a  substitute  can  be  found.  But  we  think  the  sum  named 
is  all  that  the  evidence  will  fairly  support. 

'  Act  of  Congress  of  June  6,  1900,  sess.  I,  31  U.  S.  Stats,  at  Large, 
Ch.  786,  tit.  II,  sec.  92. 

^  John  Layton  Company  v.  Blomberg,  ante,  pp.  762,  818. 


HONIGSBERG  &  CO.  V.  JONES,  MAY  26,  1920.  999 

Defendant's  motion  for  leave  to  amend  is  overruled,  the 
supplemental  petition  is  permitted  to  be  filed,  and  it  is 
accordingly  considered  and  adjudged  that  the  defendant 
take  nothing  by  his  counter-claim;  that  plaintiff  recover 
from  defendant  the  sum  of  one  thousand  dollars  ($1,000), 
U.  S.  currency,  together  with  his  costs ;  and  that  defendant 
be  enjoined  from  taking  employment  within  two  years  "with 
any  firm,  person  or  corporation  competing  with  the  said 
plaintiff  company  in  any  manner  at  Shanghai,  or  in  any 
place  in  China  where  the  said  company  has  or  may  have 
a  branch  of  its  business." 

In  Cause  No.  945,  Fearon,  Daniel  &  Co.,  Inc.  v.  Robert  F.  Hall, 
the  same  Judge,  sitting  at  Tientsin,  delivered  the  following  judg- 
ment on  June  26,  1920: 

On  May  15,  1918,  the  parties  to  this  cause  entered  into  a  written 
contract  by  which  plaintiff  employed  defendant  for  a  term  of  three 
years  in  the  capacity  "of  a  technical  paint  man  for  the  furtherance 
of  their  paint  business  in  China,"  defendant  undertaking  thereby 
that  he  would 

"not  at  the  expiration  of  this  contract,  and  for  a  period  of  three 
years  thereafter  engage  in  or  enter  the  employ  of  another  party 
in  China  in  the  same  capacity." 

In  February,  1920,  defendant  left  plaintiff's  employ  and  became 
the  manager  of  a  new  concern  in  Tientsin  known  as  the  "American 
Paint  &  Product  Company,"  a  statement  of  whose  purposes,  which 
defendant  admits  was  practically  as  he  gave  it,  appeared  in  a 
Tientsin  newspaper  to  the  effect  that 

"the  new  Company  would  give  most  of  its  time  to  paints,  in  the 
way  of  general  sales,  and  to  make  a  specialty  of  painting  and 
decorating,  while  later  on  they  would  do  a  general  import  and  export 

business." 

Defendant  also  admits  that  in  this  connection  he  purchased  paint 
and  sought  contracts  for  painting.  On  March  4,  1920,  plaintiff  filed 
a  complaint  herein  praying  for  an  injunction  to  prevent  defendant 
"from  in  any  way  engaging  in  or  entering  into  a  paint  business 
in  China.  Application  having  been  made  for  a  restraining  order, 
defendant  on  April  19,  signed  an  undertaking  "to  refrain  from  en- 
gaging in  the  paint  business  in  any  form  pending  the  final  hear- 
ing of  this  cause";  whereupon  the  same  was  continued  until  the  reg- 
ular session  at  Tientsin. 

The  facts  being  thus  indicated  the  sole  question  is  whether  plain- 
tiff is  entitled,  as  a  matter  of  law,  to  the  relief  sought.  The  pro- 
hibition of  entering  into  other  employment,  as  we  have  seen,  is  for 
a  limited  time,  i.  e.,  three  years  after  the  expiration  of  the  contract. 
As  the  plaintiff  alleges  that  defendant  left  its  employ  on  or  about 


1000  I  EXTRATERRITORIAL  CASES. 

February  1,  1920,  and  as  there  is  no  averment  or  evidence  of  any 
opposition  on  the  plaintiff's  part  we  can  only  assume  that  the  con- 
tract was  terminated  by  mutual  consent  and  the  three-year  period 
above  mentioned  would  consequently  run  from  February  1,  1920.  The 
prohibition  of  this  limit  in  time  is  free  from  the  objections  which  led 
to  the  denial  of  a  permanent  injunction  in  the  leading  case '  decided 
by  this  Court.  Moreover  in  that  case  the  evidence  disclosed  that 
complainant  had  but  one  plant  in  China  and  that  at  Hankow, 
whereas  in  the  case  at  bar  it  appears  that  plaintiff  has  no  less 
than  six  offices  in  China,  that  it  operates  the  paint  business  in 
those  and  other  offices  and  transacts,  according  to  the  testimony, 
75%  of  all  paint  business  in  China  including  sales  to  missionaries 
in  various  parts  and  extensive  contracts  like  the  painting  of  signs 
for  the  British  American  Tobacco  Company.  It  is  clear  therefore 
that  the  observations  in  the  case  last  cited  as  to  the  unreasonable- 
ness of  a  restriction  applying  to  all  of  China  are  not  applicable 
here  and  that  plaintiff  has  made  a  showing  of  need  for  protection 
in  its  business  which  was  wholly  wanting  in  the  other  case.  The  facts 
here,  indeed,  are  much  more  nearly  parallel  to  a  recent  decision  - 
of  the  Court  in  which  such  an  injunction  was  granted;  for  while 
there  the  order  applied  to  "any  place  in  China  where  the  said  com- 
pany has  or  may  have  a  branch  of  its  business"  it  really  operated 
in  Shanghai  alone  since  the  testimony  showed  that  no  branch  had 
then   been    established   elsewhere. 

Under  the  evidence  in  this  cause  we  must  find  that  the  restric- 
tions of  the  contract  as  regards  both  time  and  place  are  not  unreason- 
able and  that  plaintiff  is  consequently  entitled  to  the  enforcement 
thereof. 

Defendant  is  accordingly  enjoined  from  engaging  or  entering  the 
employ  of  another  party  in  China  in  the  capacity  of  a  technical 
paint  man  for  three  years  from  February  1,  1920,  and  is  further 
adjudged  to  pay  the  costs  of  this  proceeding. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 
In  re  William  Howard's  Will. 

[Cause   No.   614;    filed   June   10,    1920.] 

SYLLABUS. 
(By  the  Court.) 

1.  WILLS:  Interpretation.  A  clause  directing  the  investment  of  the 
testator's  funds  "for  the  benefit  of  my  wife  *  *  *  and 
daughter"  constitutes  a  direct  bequest  to  each  in  equal  shares. 

^  John  Layton  Co.  v.  Blomberg,  ante,  p.  818,  where  the  authorities 
English  and  American  are  reviewed. 

'  H.  S.  Honigsberg  &  Co.,  Inc.,  v.  Jones,  ante,  p.  999. 


IN   RE   HOWARD'S  WILL,   JUNE    10,    1920.  IQOl 

2.  AGE.  While  the  normal  age  of  majority  in  this  jurisdiction,  for 
both  sexes,  is  twenty-one  years,  a  female  beneficiary  under  a 
will  is  entitled  to  payment  of  the  bequest  on  attaining  the  age 
of  eighteen. 

LOBINGIER,  J.: 

The  will  involved  in  this  case  directs 

"that  all  monies  due  to  me  be  collected,  including  gratuity  from  the 
Chinese  Maritime  Customs,  and  ijivested  by  the  honorable  United 
States  Court  for  China  to  the  best  advantage  for  the  benefit  of  my 
wife.  Ah  Chan  (Mrs.  W.  Howard)  and  our  daughter  Mamie  How- 
ard; that  my  clothing,  jewelry,  books,  photos  and  furniture  be  given 
to  my  wife,  Ah  Chan,  for  her  and  our  daughter's  benefit  without 
any  restrictions  whatsoever." 

Such  provisions  may  be  treated  as  direct  bequests  ^  to  the 
widow  and  surviving  daughter  of  the  deceased  in  equal 
shares.  -  Pursuant  thereto,  the  administrator  cum  testa- 
mento  annexo  (no  executor  having  been  named)  delivered 
the  funds  of  the  estate  to  the  Clerk  of  this  Court  who  was  di- 
rected to,  and  did,  invest  the  same  "in  Shanghai  Municipal 
Loan  of  1917  (short  term)  1%  debentures."  The  income 
from  this  investment  has  been  regularly  paid  to  the  widow 
who  now  asks  that  the  securities  be  distributed  to  her  and 
the  daughter,  who,  the  former  states,  is  about  eighteen. 
The  question  therefore  arises  whether  the  appointment  of 
a  guardian  for  the  daughter  is  necessary  or  whether  dis- 
tribution may  be  made  direct. 

Under  a  statute  in  force  in  this  jurisdiction 

"all  persons  shall  be  deemed  to  have  arrived  at  majority  at  the  age 
of  twenty-one  years,  and  thereafter  shall  have  control  of  their  own 
actions  and  business,  and  have  all  the  rights  and  be  subject  to  all 
the  liabilities  of  citizens  of  full  age."" 

'In  the  Estate  (No.  40)  of  Thomas  Buckley  Owen,  U.  S.  Court  for 
China,  October  11,  1907,  it  was  held  that  the  following  clause  "  'I 
hereby  give  and  bequeath  to  my  successor  in  the  woi"k  the  library  in 
trust  for  the  Hardy  Bible  Training  School,'  is  and  shall  be  interpreted 
as  making  an  unrestricted  bequest  to  said  Hardy  Bible  Training 
School." 

"  In  re  Trinidad's  Will,  ante,  p.  894. 

■''  Act  of  Congress  of  June  6,  1900,  Sess.  I,  31  U.  S.  Stats,  at  Large 
Ch.  786,  Tit.  Ill,  sec.  34. 


1002  I  EXTRATERRITORIAL  CASES. 

But  a  later  statute  also  provides 

"where  a  bequest  of  personal  property  or  money  is  made  to  a 
female  and  directed  by  the  will  to  be  paid  on  her  attaining  to 
full,  mature,  or  to  a  lawful  age,  such  female  shall  be  entitled  to 
receive  and  demand  such  personal  property  or  money  on  her  arriving 
at  the  age  of  eighteen  years  or  being  married."  ■* 

This  latter  section  therefore  applies  here  and  the  daughter 
is  entitled  to  receive  the  bequest,  without  the  intervention 
of  the  guardian,  as  soon  as  she  attains  the  age  of  eighteen. 

It  is  accordingly  ordered  that  the  cause  be  referred  to  the 
Commissioner  to  take  proof  as  to  the  daughter's  age  and 
that,  if  it  is  found  that  she  has  attained  the  age  of  eighteen, 
the  Clerk  deliver  to  her  one-half  of  the  securities  belonging 
to  the  estate  and  the  other  half  to  the  widow,  less  any  lawful 
charges. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Mercantile  Bank  of  India,  Ltd.,  Plaintiff,  v.  Caravel  & 
Co.,  Inc.,  Defendant. 

[Cause  No.  888;  filed  June  10,  1920.] 

SYLLABUS. 
(By  the  Court.) 

AGENCY:  OSTENSIBLE  AUTHORITY.  A  subordinate  employee  in  a  local 
office  in  charge  of  another,  neither  of  whom  has  actual  author- 
ity to  negotiate  an  exchange  contract,  derives  no  ostensible 
authority  therefor  from  the  mere  fact  of  occupying  such  office 
with   his   superior. 

Messrs.  White-Cooper,  Master  &  Harris,  by  Mr.  Harris, 
for  plaintiff. 

Messrs.  Fleming,  Davies  &  Bryan,  by  Mr.  Bryan,  for 
defendant. 

LOBINGIER,  J.: 

The  amended  petition  in  this  cause  alleges  that 

"On  the  29th  day  of  September,  1919,  the  defendants  entered  into 
a  contract  with  the  plaintiff   (a  copy  whereof  is  hereunto  annexed) 

^  Act  of  Congress,  March  3,  1901,  sess,  II,  31  U.  S.  Stats,  at  Largo, 
Ch.  854,  sec.  393. 


BANK  OF  INDIA  V.  CARAVEL  &  CO.,  JUNE  10,  1920.   1003 

for  the  purchase  by  the  defendants  from  the  plaintiff  of  the  equiv- 
alent in  gold  dollars  of  Tls.  18,000 — at  exchange  133|  September 
delivery." 

It  is  further  alleged  that  "an  order  to  fix  the  exchange 
was  given  to"  an  exchange  broker  by  "defendant's  manager 
on  the  instructions  of  Mr.  Meyersohn,  the  defendant's  di- 
rector." This  entire  averme-nt  is  denied  in  the  amended 
answer  and  the  sole  question  is  whether  defendant  entered 
into  such  a  contract  as  is  here  alleged. 

There  is  considerable  controversy  as  to  the  status  and 
authority  of  the  party  who  is  designated  in  the  above  ex- 
cerpt as  "the  defendant's  director."  His  name  appears  on 
defendant's  letter  head  (Ex.  1)  tho  not  with  any  title.  He 
left  here  on  October  4  and  defendant  endeavored  to  have 
his  deposition  taken  in  Yokohama  but  before  the  inter- 
rogatories reached  there  Meyersohn  had  left  for  New  York 
and  plaintiff  objected  to  a  continuance  for  taking  the  de- 
position at  that  place.  His  successor  with  defendant  here 
testifies  that  Meyersohn,  like  himself,  was  "in  charge"  of 
the  local  office  but  that  the  contract  of  employment  of  each 
contained  the  limitation 

"that  he  vi'ill  not  consummate  any  sale  or  deal  without  first  receiving 
the  confirmation  of" 

the  company  and  that  such  is  the  invariable  practice  in  all 
transactions. 

Other  portions  of  plaintiff's  evidence,  however,  render  the 
question  here  not  so  much  one  as  to  the  authority  of  Meyer- 
sohn as  the  capacity  in  which  he  acted  during  the  ne- 
gotiations which  gave  rise  to  this  proceeding.  For  the 
details  of  the  transaction  plaintiff  relies  mainly  on  the 
testimony  of  the  one  designated  in  the  petition  as  "de- 
fendant's manager"  but  who,  according  to  its  present  rep- 
resentative, "was  no  more  than  a  clerk  when  Meyersohn 
was  here."  This  employee  states  that  he  had  no  power  of 
attorney  and  that  any  contracts  negotiated  by  him  were 
"subject  to  Meyersohn's  approval."  As  regards  the  begin- 
ning of  this  particular  transaction  he  testifies: 

"Q.  What  was  the  first  thing  Mr.  Meyersohn  said  to  you  with 
regard  to  exchange? 

A.  To  ascertain  the  quotations  from  the  banks  for  demand  draft 
on  New  York  for  $34,000  gold     *     *     *. 


1004  I  EXTRATERRITORIAL  CASES. 

Q.  Did  you  obtain  any  quotations? 

A.  I  telephoned  to  the  Hongkong  Bank  and  they  quoted  1302 . 

Q.  Did  you  report  that  to  Mr.  Meyersohn? 

A.  I  reported  that  to  him. 

Q.  What  did  he  say  to  that? 

A.  He  said  that  if  you  would  get  131  he  would  close  for  18,000 
taels." 

Thereupon,  the  employee  states,  he  telephoned  the  broker 
that 

*'our  firm  would  like  to  close  for  18,000  taels  at  the  rate  of  131  for 
demand  draft  New  York." 

On  cross-examination  he  testified 

"Q.  When  you  showed  Mr.  Meyersohn  this  exchange  contract,  he 
asked  you  Avhy  the  name  of  Caravel  &  Co.,  was  mentioned,  didn't  he? 

A.  Not  at  once.  After  a  little  conversation  I  had  with  him  he 
asked  me  why  was  the  name  of  Caravel  &  Co.,  mentioned  and  I 
told  him — I  said  'Isn't  it  for  the  firm?'  and  he  said  'No,  Caravel  & 
Co.  have  nothing  to  do  with  it'  and  I  said  'That  is  very  easy,  you 
can  ask  the  Bank  to  change  it  and  issue  the  demand  draft  in  what- 
ever name  you  want.' 

Q.  He  said  it  was  his  own  contract  and  not  the  contract  of  Caravel 
&  Co. 

A.  It  appears,  eventually." 

It  will  be  seen  from  the  foregoing  that  there  is  no  precise 
testimony  of  any  specific  instructions  by  Meyersohn  to  pur- 
chase a  draft  for  the  defendant  as  alleged  in  the  amended 
petition.  The  employee  to  whom  the  instructions  were  given 
inferred  that  the  purchase  was  for  defendant  but  unfor- 
tunately for  plaintiff  he  (its  principal  witness)  does  not 
claim  any  specific  instructions  to  that  effect. 

In  argument  the  case  for  plaintiff  was  made  to  rest 
not  so  much  on  the  authority  of  Meyersohn  nor  upon  the 
instructions  which  he  gave  as  upon  the  fact  that  the  order 
was  placed  with  the  broker  by  an  employee  of  defendant 
who  occupied  the  front  office  with  Meyersohn.  This,  it  is 
claimed,  constituted  such  a  "holding  out"  of  authority  as 
to  bind  the  defendant  even  tho  the  employee  was  not 
actually  authorized  to  place  the  order.  Plaintiff,  however, 
cites  no  decisions,  either  English  or  American,  on  this  point 
nor  have   we   been   able   to    find   any   which   support   his 


BANK  OF  INDIA  v.  CARAVEL  &  CO.,  JUNE  10,  1920.   1005 

contention  to  that  extent.     To  the  same  contention  in  a 
somewhat  similar  case  it  was  observed : 

"There  is  no  claim  that  the  power  was  expressly  given,  but  the 
argument  is  that  the  power  arose  out  of  the  nature  of  the  agency, 
and  that  plaintiff  had  a  right  to  assume  that  the  power  existed. 
It  is  to  be  remembered  that  persons  dealing  with  an  assumed  agent 
are  bound,  at  their  peril,  to  ascertain,  not  only  the  fact  of  the 
agency,  but  the  extent  of  the  agent's  authority.  They  are  put  upon 
their  guard  by  the  very  fact  that  they  are  dealing  with  an  agent, 
and  must,  at  their  peril,  see  to  it  that  the  act  done  by  him  is  within 
his  power.  It  is  their  right  and  duty  to  ascertain  the  extent  of 
his  power,  and  to  determine  whether  his  act  comes  within  the  power 
and  is  such  as  to  bind  his  principal.  *  *  *  It  is  argued,  how- 
ever, that  Harte  would  be  presumed  to  have  the  power  which  he 
exercised  for  the  reason  that  he  was  agent  of  a  corporation,  and 
corporations  act  thru  agents.  Under  the  same  circumstances  and 
in  like  business,  an  individual  would  necessarily  act  thru  agents; 
and  we  do  not  understand  that  the  presumptions  are  any  different 
in  the  case  of  a  corporation  than  an  individual.' ' 

The  foregoing  appears  to  state  the  law  correctly  for  any 
Anglo-American  jurisdiction.  A  principal  may  be  liable, 
indeed,  for  acts  performed  under  the  agent's  ostensible 
authority ;  but  that  is  usually  where  similar  acts  have  been 
permitted  with  the  principal's  knowledge.-  In  the  case  at 
bar  the  employee  who  placed  the  order  states  that  he  never 
knew  of  any  other  exchange  contracts  on  the  part  of  de- 
fendant while  the  present  manager  says  that  it  has  never 
been  the  policy  of  defendant  to  deal  in  exchange  at  all. 
There  was  consequently  no  "holding  out"  on  that  ground 
and  we  have  been  unable,  we  repeat,  to  find  judicial  sup- 
port for  it  in  the  mere  fact  that  the  employee  who  placed 
the  order  occupied  the  same  room  with  the  one  who  was  in 
charge  of  the  local  office. 

The  evidence,  therefore,  leads  inevitably  to  these  con- 
clusions: (1)  Meyersohn  was  without  authority,  except  as 
confirmed,  to  negotiate  an  exchange  contract  on  defendant's 

'Merchants  National  Bank  v.  Nichols,  223  111.  41,  79  N.  E.  38, 
7  L.  R.  A.   (N.  S.)   753. 

'  Corpus  Juris,  II,  463 ;  Jefferson  Hotel  Company  v.  Brumbaugh, 
168  Fed.  867;   Burton  v.  Burley,  13  Fed.  811. 


1006  I  EXTRATERRITORIAL  CASES. 

behalf;  (2)  there  is  no  specific  evidence  that  he  attempted 
to  exercise  such  authority;  and  (3)  any  instructions  which 
he  gave  regarding  the  purchase  in  question  w^ere  on  behalf 
of,  and  bound  only,  himself. 

It  follows  that  plaintiff's  averment  that  the  "defendant 
entered  into  a  contract  with  plaintiff"  remains  unproved 
and  it  is  accordingly  considered  and  adjudged  that  plaintiff 
take  nothing  by  its  complaint  and  that  defendant  recover 
its  costs. 


IN  THE  UNITED  STATES  COURT  FOR  CHINA. 

Lung  Chu,  Plaintiff,  v.  Sino-Americo,  Trading  Corpora- 
tion, Defendant. 

[Cause  No.   1001;   filed  June   25,   1920.] 

SYLLABUS. 

(By  the  Court.) 

1.  CONTRACTS :    FORMATION :    ACCEPTANCE    is    necessary    in    order    to 

turn  an  offer  into  a  contract  and  such  acceptance  must  be  com- 
municated to  the  proposer. 

2.  Id.  :   Acceptance  must  be  absolute  and  in  the  identical  terms  of 

the  offer. 

3.  Id.:  Offer.     A  request  for  terms  differing  from  the  offer  amounts 

to  a  counter  proposal  and  rejection  of  the  former. 

4.  Id.  :  Id.  :  Revocation  is  open  to  the  proposer  up  to  the  moment  of 

acceptance. 

5.  Id.  :  Execution  of  an  instrument  without  reading  it  will  not  ex- 

cuse a  party  from  the  terms  thereof  in  the  absence  of  fraud. 

Messrs.  Kent  &  Mounsey,  by  Mr.  Kent,  for  plaintiff. 
Edgar  Pierce  Allen,  Esq.,  for  defendant. 

LOBINGIER,  J.: 

On  June  7,  1919,  plaintiff  executed  an  instrument  (Ex- 
hibit 2)  reciting  that: 

"The  undersigned  orders  thru  the  Sino-Americo  Trading  Cor- 
poration the  undermentioned  goods  subject  to  approval  of  manu- 
facturer." 

A  description  of  the  goods  in  question  follows  the  fore- 
going clause  and  then  the  plaintiff's  ''chop"  or  signature 


LUNG  CHU  V.  TRADING  CORP.,  JUNE  25,   1920.       1007 

in  Chinese.  Another  instrument  bearing  the  same  date 
but  executed  by  defendant's  manager,  according  to  his  tes- 
timony, two  days  later,  contained  the  same  descriptions  and 
purported  to  be  a  "contract  for  the  sale  and  purchase  of 
the  undermentioned  goods."  It  was  later  sent  in  duplicate 
to  the  plaintiff  and  retained  but  never  executed  by  it. 
From  the  evidence  it  appears  that  the  last  named  instru- 
ment was  signed  by  defendant's  manager  at  the  request  of 
the  manufacturer's  agent,  then  in  Tientsin,  who  had  so- 
licited orders  for  these  goods  and  subsequently  cabled  them 
to  his  principal  in  New  York,  where  the  order  was  rejected 
by  a  cable  sent  June  12,  reading: 

"Impossible  to  close  business  other  than  original.  Telegraph  quota- 
tions.    Please  explain  extraordinary  advance." 

No  money  was  paid  by  plaintiff  on  the  transaction  but  it 
seeks  to  hold  defendant  for  damages  in  the  sum  of  Tls. 
6,233.75  "suffered  by  reason  of  loss  of  market." 

In  its  reply  plaintiff  alleges : 

"The  document  alleged  by  the  defendant  corporation  to  constitute 
the  contract  in  this  matter  (Exhibit  No.  1  of  the  answer)  was  re- 
garded by  the  plaintiff  firm  as  an  order  or  statement  of  their  require- 
ments, which  was  accepted  and  reduced  to  a  contract  by  the  docu- 
ment referred  to  in  paragraph  3  of  the  complaint." 

The  documents  here  mentioned  are,  respectively,  those 
already  referred  to  as  Exhibit  2  and  Exhibit  1.  In  other 
words  (and  such  was  counsel's  contention  arguendo) ,  Ex- 
hibit 2  "was  regarded  by  the  plaintiff  firm  as  an  order  or 
statement  of  their  requirements  which  was  accepted  and 
reduced  to  a  contract."  But  Exhibit  2,  as  we  have  seen, 
was  an  order  "subject  to  approval  of  manufacturer"  and 
if  that  order  was  accepted  by  defendant  so  as  to  create  a 
contract  it  must  have  been  accepted  in  the  precise  terms 
in  which  it  was  made.  As  stated  by  an  eminent  au- 
thority ^ 

"Acceptance  therefore  must  be  absolute.  A  proposed  to  sell  a  prop- 
erty to  X;   X   accepted   'subject   to  the   terms   of  a   contract   being 

'Anson  Contracts  (8th  Ed.)  48.  Cf.  Steiner  v.  Frazar  &  Co., 
ante,  p.  249. 


IQQg  I  EXTRATERRITORIAL  CASES. 

arranged'  between  his  solicitor  and  A's.  Here  it  was  held  that  there 
was  no  agreement,  for  the  acceptance  was  not  final  but  subject 
to  a  discussion  to  take  place  between  the  agents  of  the  parties." ' 

In  other  words  defendant  could  accept  the  order  (offer) 
referred  to  only  "subject  to  approval  of  manufacturer"  and 
if  Exhibit  1,  the  instrument  subsequently  signed  by  defend- 
ant, was  an  acceptance  at  all  it  was  an  acceptance  with 
that  condition.  It  is  not  material  whether  plaintiff's  atten- 
tion was  called  to  that  condition  or  whether  it  failed  to 
read  the  instrument  before  signing  it.  The  rule  is  well 
settled  that,  in  the  absence  of  fraud  (and  nothing  of  that  is 
claimed  here),  a  party  who  signs  an  instrument  "is  not 
permitted  to  show  that  he  did  not  know  its  terms."  ^ 

II. 

On  the  other  hand  if  Exhibit  1  was  not  an  acceptance,  as 
contended  by  plaintiff,  it  could  only  have  resulted  in  a 
contractual  relation  as  an  offer  by  defendant,  and  if  it 
were  such  it  required  acceptance  by  plaintiff  in  order  to 
create  a  contract.^  It  is  true  that  an  acceptance  like  an 
offer  may  be  effected  by  word,  act  or  conduct  "^  but  one  of 
these  must  be  shown  before  a  contract  may  result.  Was 
there  an  acceptance,  by  plaintiff,  in  such  form  of  the  terms 
and  conditions  contained  in  Exhibit  1?  That  instrument, 
with  its  duplicate,  was,  as  we  have  seen,  sent  plaintiff  by 
defendant  and  retained  by  the  former  but  was  never  signed 
by  it  and  there  is  no  claim  of  any  express  acceptance.  On 
the  contrary  defendant's  manager  testifies,  and  it  is  not 
contradicted,  that  plaintiff  insisted  that  the  date  when  the 
goods  would  arrive  should  be  inserted,  the  only  provision 
there  being  "shipment  at  option  manufacturers;  prompt 
shipment."     A  request  for  such  insertion  not  only  shows 


-"  Honeyman  v.  Marrayat,  6  H.  L.  C.  112.  Cf.  Ware  v.  Allen,  128 
U.  S.  590,  32  L.  ed.  563. 

»9  Cyc.  260.  Compare  388-390;  Meier  v.  Arkell  &  Douglas, 
ante,  p.  904. 

'  Anson,  Contracts    (8th  ed.)    32. 

°Id.  17. 


LUNG  CHU  V.  TRADING  CORP.,  JUNE  25,  1920.   1009 

nonacceptance  but  amounts  to  a  counter-offer  the  effect  of 
which  is  to  reject  the  original  one.'' 

"Where  a  person  offers  to  do  a  definite  thing  and  another  accepts 
conditionally  or  introduces  a  new  term  into  the  acceptance  his  answer 
is  either  a  mere  expression  of  willingness  to  treat  or  it  is  a  counter 
proposal,  and  in  neither  case  is  there  an  agreement".' 

There  is  testimony  of  a  custom  in  Tientsin  that  when  a 
foreign  merchant  deals  with  Chinese  he  first  negotiates 
verbally  and  after  reaching  an  agreement  signs  duplicate 
instruments  evidencing  the  same  and  sends  them  for  sig- 
nature to  the  Chinese  dealer,  later  sending  his  own  shroff 
for  one  of  the  executed  copies.  Had  that  custom  been 
followed  in  the  case  at  bar  there  would  have  been  no  occa- 
sion for  differences  between  the  parties.  But,  as  we  have 
seen,  the  prior  negotiations  here,  represented  by  Exhibit  2, 
did  not  result  in  an  agreement  and  the  subsequently  pre- 
pared instruments  were  not  executed  by  the  Chinese  dealer. 
Moreover  there  is  evidence  produced  by  plaintiff  that  de- 
fendant did  send  its  market  shroff  after  the  duplicate  in- 
struments were  in  plaintiff's  hands  and  that  the  latter  re- 
fused to  surrender  them.  True  the  reason  given  was  that 
the  shroff  stated  defendant  wanted  to  change  them.  But 
whatever  the  reason  we  see  nothing  in  this  incident  which 
amounted  to  an  acceptance.  To  us  it  seems  rather  to  sup- 
port the  contention  of  defendant's  counsel  that  his  client 
was  really  exercising  its  right  of  revocation  which  con- 
tinues up  to  the  moment  of  acceptance."*  And  not  only 
must  plaintiff  show  an  acceptance  in  order  to  recover  but 
such  acceptance  must  be  communicated  to  defendant.^ 

There  is  also  considerable  testimony  and  some  conflict  as 
to  the  time  when  the  duplicate  instruments  (Exhibits  1  and 
A)  were  forwarded  to  plaintiff.  But  if  these  instruments 
were  never  accepted  by  the  plaintiff  the  date  when  it  re- 
ceived them  is,  of  course,  immaterial. 

Md.  33,  49;  Eliason  v.  Henshaw,  4  Wheat.  (U.  S.)  225,  4  L.  ed. 
556. 

'9  Cyc.  267. 

'Anson,  Contracts   (8th  ed.)   34. 

•Id.  23. 

14008    O.    W. 64 


IQXQ  I  EXTRATERRITORIAL  CASES. 

And  we  may  here  apply  the  test  suggested  by  plaintiff's 
counsel,  i.  e.,  whether  plaintiff  itself  was  ever  bound  by  this 
transaction;  and  this  is  to  be  determined  not  by  what  de- 
fendant's manager  thought  but  by  invoking  the  legal  re- 
quirements. Had  the  situation  of  the  parties  been  reversed 
and  had  defendant  sought  to  enforce  liability  on  the  part  of 
the  plaintiff,  the  latter  could  very  well  have  said,  "I  have 
never  accepted  your  offer  nor  signed  your  proposed  con- 
tracts and  I  am  not  in  any  way  liable  thereon."  We  accept 
counsel's  contention  that  there  must  be  mutuality  in  such 
cases — that  unless  both  parties  are  liable  neither  is — and 
that  if  defendant  could  not  have  held  plaintiff  under  the 
facts  disclosed  in  this  case  plaintiff  is  equally  without  the 
right  to  hold  defendant. 

To  sum  up :  (1)  plaintiff  cannot  recover  on  a  contract  re- 
sulting from  Exhibit  2  because  the  acceptance  there  was 
conditional  only  and  the  conditions  have  never  been  ful- 
filled. (2)  Nor  did  any  contract  result  from  Exhibits  1  and 
A  for  the  reason  that  they  were  never  executed  by  plaintiff 
and  there  is  not  sufficient  evidence  of  their  acceptance 
otherwise  than  by  execution.  We'  have  no  alternative, 
therefore,  but  to  find  for  the  defendant  and  it  is  accordingly 
considered  and  adjudged  that  plaintiff  take  nothing  by  its 
complaint  and  that  defendant  recover  its  costs. 

On  the  same  day  the  following  order  was  made  by  the  same 
Judge  in  Hsieh  Po-Hsiang  v.  Shippers'   Commercial   Corporation: 

A  demurrer  is  here  interposed  to  a  petition  seeking  recovery  on  a 
series  of  instruments  which  were  executed  by  the  defendant,  addressed 
to  plaintiff's  alleged  representative,  relating  to  the  purchase  of  "strap- 
ping hoop  iron"  and  reciting  as  follows: 

"we  hereby  confirm  transaction  consummated  with  you  to  day  cov- 
ering your  purchase  of  the  following,  subject  to  the  conditions  stated 
on  the  back  hereof  and  acceptance  at  Seattle  office." 

It  appears  from  a  copy  of  a  letter  from  defendant's  Tientsin  man- 
ager attached  as  an  exhibit  to  the  petition,  and  forming  a  part  there- 
of, that 

"on  December  9th  our  Shanghai  office  received  a  cablegram  from 
our  head  office  advising  that  they  should  not  accept  these  contracts." 

This  letter  appears  to  have  been  written  on  March  12,  in  reply 
to  one  of  the  previous  day  from  plaintiff  and  the  former  letter 
further  recites  that 


HSIEH  FO-HSIANG  V.  SHIPPERS'  CORP.,  JUNE  25,  1920.  1011 

"the  contents  of  this  cablegram  were  made  known  to  Mr.  Murray 
and  as  at  that  time  you  were  the  head  of  the  Compradore  Depart- 
ment of  J.  M.  Murray  and  Company,  we  considered  the  notification 
of  the  manager  of  said  company  sufficient  notice  of  the  non-acceptance 
of  these  contracts." 

The  instruments  first  above  referred  to  were  executed,  with  one 
exception,  on  November  19,  and  it  would  appear  from  the  whole 
petition  including  the  exhibits  that  as  soon  as  these  instruments  had 
reached  the  Seattle  office  by  mail  it  sent  the  cable  referred  to. 

Plaintiff's  counsel  contends  that  by  failure  to  notify  plaintiff 
earlier,  of  the  non-acceptance,  defendant  actually  effected  an  accept- 
ance which  consummated  a  contract  in  each  instance  and  that  the 
clause  requiring  "acceptance  at  Seattle  office"  was  thereby  nullified. 
But  the  instruments  of  November  19  purport  to  be  nothing  more 
than  "confirmations,"  i.  e.,  acceptances  of  offers  previously  made 
and  in  order  that  a  contract  may  result  the  acceptance  must  be 
unconditional.^ 

As  each  one  of  these  instruments  was  "subject  to  *  *  *  ac- 
ceptance at  Seattle  office"  it  would  seem  to  follow  that  no  agreement 
could  result  at  least  until  such  acceptance  was  obtained.  We  do 
not  think  it  can  be  successfully  contended  that  the  instruments  them- 
selves are  offers.  They  do  not  purport  to  be  such  in  any  sense,  but 
if  they  were  the  rights  of  the  parties  would  hardly  be  changed;  for 
if  plaintiff  accepted  them  as  offers  he  v/ould  be  obliged  to  do  so 
subject  to  the  identical  conditions '  and  the  result  would  be  the  same. 

The  authority'  cited  by  plaintiff's  counsel  to  the  effect  that  un- 
reasonable delay  on  the  part  of  a  purchaser  in  returning  goods  might 
imply  an  acceptance,  relates  to  an  executed  contract  and  is  not  in 
point  where  the  question  is  whether  a  contract  was  ever  made. 
Another  authority  *  to  the  effect  that  a  principal's  delay  of  twelve 
days  in  passing  on  an  order  after  submission  to  him  constituted  an 
acceptance,  appears  not  only  to  be  inconsistent  with  the  authorities 
first  above  cited  but  also  not  in  point  here  since  it  does  not  appear 
that  the  Seattle  office  delayed  answer  unduly  after  receiving  the 
order  in  question. 

On  the  whole  the  facts  recited  in  the  petition  with  its  exhibits  fail 
to  disclose  a  completed  contract  betv/een  the  parties  and  the  demur- 
rer is  accordingly 

SUSTAINED. 

^  Lung  Chu  V.  Sino-Americo  Trading  Corp.,  ante,  p.  1007. 
"Id. 

'Benjamin  on  Sales   (7th  ed.),  sec.  162. 

^Bluegrass  Cordage  Co.  v.  Luthy,  98  Ky.  583,  33  S.  W.  835,  17 
Ky.  L.  Rep.  1126. 


INDEX. 


ACTIONS.     See  also  Venue. 

1.  Adequate   remedy   at   law   not   apparent   from   pleadings, 

282. 

2.  Proceeding  to  enforce  judgment  is  one  at  law  and  can 

not  be  joined  with  one  to   recover  on   an  independent 

claim,  244. 
S.  hi  rem;  consular  jurisdiction  of,  9,  12,  25. 
ADMINISTRATION  OF  ESTATES.      See  COURTS,  2. 
1.  Jurisdiction  of  Consular  Courts,  11. 
2. is  judicial,  295. 

3.  General   administrative  duties  exercised  by  consuls  else- 

where may  still  be  exercised  in  China  if  consistent  with 
judicial  powers,  295. 

4.  Judge  of  United  States  Court  must  exercise  supervisory 

control  over  consular  administration,  295. 

5.  Proceedings   in   Consular   Court   regarding   estate   subse- 

quently found  to  be  beyond  its  jurisdiction  may  be 
adopted  by  United  States  Court  and  treated  as  having 
been  conducted  under  its  direction,  722,  724. 

6.  Estate  closed  by   Consular   Court  reopened   by  order  of 

United  States  Court  so  as  to  include  "additional  and 
heretofore  undiscovered  property,"  722,  note. 

7.  Appointment  of  administrator  not  avoided  by  subsequent 

discovery  of  will  but  the  letters  will  usually  be  re- 
voked though  with  confirmation  of  administrator's  acts 
thereunder  regularly  performed,  913. 

8.  Personal  representative's  authority  limited  to  jurisdiction 

wherein  letters  issued,  109. 

9.  Where   will   failed   to   name  executor,    surviving   spouse, 

who  was  also  father  of  beneficiary,  appointed  admin- 
istrator cum  testamento  annexo,  626. 

10.  Ordinary  letters  will  issue  where  the  instrument  offered 

for  probate  is  not  admitted  and  the  estate  will  be 
administered  as  intestate,  844. 

11.  Time  allowed  heir  to  determine  whether  to  continue  ad- 

ministration in  China  or  take  out  ancillary  letters  at 
locus  rei  sitae,  539. 

12.  Claims  should  be  verified,  596. 

1013 


1014  INDEX. 

ADMINISTRATION   OF   ESTATi:S— Continued. 

13.  After  rejection  by  personal  representative,  evidence  other 

than  claimant's  required,  598. 

14.  Administrator's  fee  of  7%  of  total  assets  considered  suf- 

ficient, 698. 

ADMINISTRATORS.      See   ADMINISTRATION  OF   ESTATES. 
ADOPTION. 

1.  United   States  Court  for  China  may  hear  and  determine 

petition  by  American  citizens  for  adoption  of  minor 
child,  443. 

2.  Procedure  determined  by  Acts  of  Congress,  Id. 

3.  Consent  of  parent  who  has  abandoned  child  unnecessary, 

444. 

4.  Consent  of   natural   parents   dispenses  w^ith   need  of  ap- 

pointing guardian  ad  litem,  754. 

5.  Statutory   requisites   found  to   have  been   complied   with, 

444. 

6.  The    adopted   one   need   not   be   of   American   descent   or 

citizenship,  754-756. 
ADULTERY.     See  CRIMES,  46.     DIVORCE,  8,  19,  20.     Evidence,  46-49. 

AGE. 

While  the  normal  age  of  majority  under  Federal  law  is 

21  years  for  both  sexes,  a  female  beneficiary  under  a 

will  is  entitled  to  receive  her  bequest  at  18,  1002. 

AGENCY.     See  Contracts,  17,  60-72,  79-82.     Crimes,  83.    Judgments, 

2.    Process,  1,  2. 

1.  An  agent  can  not  generally  bind  his  principal  to  a  longer 

lease  or  to  other  obligations  than  as  expressly  author- 
ized, 346. 

2.  Ratification  by  agent  of  an  unauthorized  act  requires  ex- 

press authority,  Id. 

3.  A  cable   company  is  the   agent  of  the   sender  to   deliver 

only  the  actual  message,  587. 

4.  A  subordinate  employee  in  a  local  office  in  charge  of  an- 

other without  actual  authority  to  negotiate  an  exchange 
contract,  derives  no  ostensible  authority  therefor  from 
the  mere  fact  of  occupying  such  office  with  his  superior, 
1002,  1005. 

A06REGATIO    MENTIUM,   580. 

ALIMONY.     See  DIVORCE,  1,  10,  13,  14. 

AMENDMENT.     See  Pleading,  14. 

ANNULMENT.     See  MARRIAGE,  2-5. 

APPEAL. 

1.  A  continuation  of  the  original  proceeding,  528. 

2.  Cannot  be  perfected  without  filing  petition  setting  forth 

reasons  as  required  by  Sec.  41  of  Court  Regulations,  206. 


INDEX.  1015 

APPEAL — Continued. 

3.  In   United   States   Court  for   China,   heard  ordinarily  on 

evidence  taken  below,  530. 

4.  Trial  de  novo  on,  does  not  necessarily  include  reception  of 

new  evidence,  528. 

5.  Such  trial,  with  reception  of  additional  evidence,  in  cases 

appealed  from  Consular  Courts  to  the  United  States 
Court,  is  permissible,  if  at  all,  only  upon  strong  showing 
that  "justice  will  be  promoted  thereby,"  183. 

6.  Order  of   United   States   Court  for  China   denying  right 

of   intervention   is   a   final   one   and   properly   reviewed 
on  appeal,  257. 
ARBITRATION  AND  AWARD. 

1.  In  an  extraterritorial  Court  an  agreement  to  arbitrate  is 

construed  according  to  the  law  of  defendant's  nation- 
ality, 203. 

2.  Such   agreement   revocable   at   any   time   before   publica- 

tion of  award,  203. 

3.  Notice  of  intention  to  revoke  need  not  be  given  adverse 

party;   sufficient  if  given  arbitrators,  204. 

4.  Such  notice  must  be  written  if  submission  was,  204. 

5.  No  valid  award  is  rendered  by  an  arbitrator  to  whom  is 

submitted  the  amount  due  under  two  contracts  and  who 
refers  one  of  them  to  a  third  party  and  leaves  proof 
to  be  taken  elsewhere  as  regards  the  other,  973-976. 
ARREST. 

1.  Means  any  form  of  detention;  neither  warrant  nor  phys- 

ical force  required,  361. 

2.  Not  confined  to  criminal  proceedings,  362. 

3.  Formal  complaint  and  warrant  unnecessary  where  accused 

admits  guilt  when  brought  before  magistrate,  288. 

4.  Civil  magistrate  may  commit  and  detain  a  naval  deserter 

before  delivering  him  to  naval  authorities,  289. 
ASSAULT.     See  CRIMES,  31-34,  73. 
ASSIGNMENTS  FOR  CREDITORS. 

Voluntary  assignment  act  of  congress  of  March  3,  1901, 

held  available  in  China  and  cumulative  to  Bankruptcy 

Act,  950. 
ATTACHMENT.     See  DIVORCE,  15.     Equitable  Assignment. 
ATTORNEYS  AT  LAW. 

1.  Disbarment    proceedings    may    be    instituted    by    another 

than  the  District  Attorney,  834. 

2.  Misconduct  justifying  disbarment  need  not  occur  in  the 

course  of  professional  employment  nor  toward  a  client, 
835,  846. 

3.  Prior  conviction  of  offense  charged,  tho  criminal,  is  not 

necessary,  836. 


1016  INDEX. 

ATTORNEYS  AT  LAW— Continued. 

4.  Evidence  reviewed  and  found  sufficient  to  show  miscon- 

duct and   deceit  justifying  disbarment,   846,  865. 

5.  Deceit  may  include  suppressio  veri  as  well  as  suggestio 

falsi,  861. 

6.  Neither  appeal  nor  writ  of  error  lies  from  an  order  of 

disbarment  nor  will  mandamns  lie  to  compel  respond- 
ent's reinstatement,  867   (note). 

AUTOMOBILES.     See  HIGHWAYS. 

BAILMENT.      See  WAREHOUSEMEN. 

BANKRUPTCY.      See  ASSIGNMENTS   FOR   CREDITORS. 

1.  Federal  Bankruptcy  Act  held  available  and  enforcible  by 

United   States   Court,  899. 

2.  A  secured  creditor  may  institute  bankruptcy  proceedings 

where  his  claim  exceeds  the  security,  900. 
BILLS  OF  LADING.     See  Carriers,  7-9. 

BOUGHT  AND  SOLD  NOTES.      See  NEGOTIABLE  INSTRUMENTS. 
BROKERS.     See   CONTRACTS,  57-59. 
BURDEN  OF  PROOF.     See  EVIDENCE,  12-22. 
CANCELLATION. 

Distinguished  from  rescission,  886. 
CARRIERS. 

1.  Must  serve  all  applicants  alike,  unconditionally,  and  can 

not  make  acceptance  conditional  on  third  party's  con- 
sent, 606,  610,  618,  619. 

2.  Exceptions,  606,  607,  618. 

3.  Burden  rests  on  carrier  to  prove  exceptions,  618. 

4.  Measure  of  damages  for  refusing  freight  is  reimbursement 

for  actual  loss  incurred  including  assured  profits  from 
a  pending  contract,  611,  612. 

5.  Applicant  need  not  prove  that  carrier  knew  of  such  con- 

tract, 613. 

6.  Such  profits  must  be  charged  with  any  reduction  resulting 

from  shipment  of  same  goods  by  another  carrier,  613. 

7.  Where   a  bill  of  lading  makes  freight  charges   "payable 

on  weight  or  measurement  *  *  *  at  carrier's  op- 
tion," the  latter  must  elect  on  which  to  charge  and 
such  election  can  not  be  revoked  except  upon  grounds 
justifying  rescission  of  contract,  779,  780. 

8.  A  clause  in  margin  reading  "rates,  weight  or  measurement 

subject  to  correction"  does  not  authorize   such  revoca- 
tion, 781. 
9-  Accepting    payment    on    measurement    basis    constitutes 
such  an  election,  779. 
10.  Delivery   of  cargo   on   wharf  sufficient   if   in   consignee's 
presence,  88,  91. 


INDEX.  1017 

CERTIFICATE.     See  EVIDENCE,  50. 
CHARTER  PARTY.      See  CONTRACTS,  34. 
CHINESE  LAW.     See  Law,  20,  23. 

CITIZENSHIP.     See  ADOPTION,  1,  6.     Evidence,  17. 

1.  Presumption  of,  arising  from  evidence  of  birthplace  con- 

tinues until  overthrown  by  proof  of  subsequent  alien- 
age, 378. 

2.  Evidence  found  insufficient  to  overcome  defendant's  claim 

of  American  nationality.  Id. 

3.  Once  established  continues  until  change  is  proved,  281,  670. 

4.  Evidence  of  change  of,  must  be  clear  and  convincing,  185. 

5.  Section  4,  Act  of  1907,  does  not  in  terms  provide  an  ex- 

clusive method  of  retaining  citizenship  nor  penalize,  by 
loss  thereof,  the  failure  to  register  as  therein  authorized, 
421. 

6.  Question  whether  "abroad"  as  there  used  applies  to  res- 

idence in  extraterritorial  jurisdictions,  422. 

7.  Children  tho  born  abroad,  of  American  father,  acquire  his 

nationality,   424,   702. 

8.  Native   born   entitled   to   certain    privileges   not   available 

to  naturalized  citizens  among  which  is  greater  latitude 
as   regards   residence    abroad,    699,   702. 

9.  History  of  expatriation  doctrine  traced,  705,  709.- 

10.  Modes  of  expatriation  prescribed  by  Act  of  1907,  exclusive, 

709,  710. 

11.  Americans   in   extraterritorial   countries    remain    "subject 

to  the  jurisdiction  *  *  *  of  the  United  States" 
to  a  much  greater  extent  than  those  in  other  foreign 
countries,    710. 

12.  Under  Chinese  Law,  710,  711. 

CODICILS.     See  Wills,  12-16. 

COMMISSIONER. 

1.  Jurisdiction  and  powers,  10,  11. 

2.  A  part  of  American  judicial  machinery  in  China  before 

establishment  of   United   States   Court,   927,   928. 

3.  Does  not  constitute  a  court  but  merely  assists  the  court 

appointing  him,  931. 

COMMISSIONS.     See  Contracts,  58,  65. 
COMMON  CARRIERS.      See   CARRIERS. 
COMMON  LAW.     See  Law,  2-4. 
COMPLAINTS.     See  Pleading,  15. 
CONFESSION.     See  Judgments,  2. 


1018  INDEX. 

CONFLICT  OF  LAWS. 

1.  Lex  fori  applied  in  extraterritorial  courts,  203,  227, 

2.  Foreign  law  presumed  to  be  same  as  that  of  forum,  389. 

3.  Agreement    to    arbitrate    construed    by    extraterritorial 

courts  according  to  law  of  defendant's  nationality,  203. 

4.  Validity  of  mortgage  registered  at  Spanish  Consulate  in 

Shanghai  determined  by  Spanish  law,  212   (but  see  66, 
70,  80). 

5.  Lex  loci  rei  sitae  governs  incidents  of  land,  66,  70,  80. 

6.  Compensation  for  buildings  erected  by  the  British   Gov- 

ernment on  land  expropriated  from  a  subject  in   Zan- 
zibar governed  by  local   Mohammedan  law,  66,   73. 

CONSPIRACY.     See  CRIMES,  35-39.     Evidence,  34-36. 

CONSTITUTIONAL  LAW. 

1.  The  Federal  Constitution  has  no  force  in  an  extraterri- 

torial country,  50,  311,  478. 

2.  Judgments   of  American    Consular   Courts   in    China   are 

within   the   "faith    and   credit"   clause   of   the    Federal 
Constitution,  472,  473. 

3.  Congress  cannot  constitutionally  delegate  to  a  territorial 

legislature   power  to  withdraw  acts   once  extended  by 
Congress  over  other  jurisdictions,  657. 

CONSULAR  COURTS. 

1.  In  China,  9-11. 

2.  In  Turkey,  12  et  seq. 

3.  Are  of  limited  jurisdiction,  65. 

4.  But  construction  should  not  defeat  the  purpose  of  their 

creation,  65. 

5.  Have  jurisdiction  over  crimes  committed  on  high  seas,  57. 

CONSULS.     See  Administration  of  Estates,  1-3,  5,  6. 

1.  Jurisdictional  powers  dependent  on  treaties,  32. 

2.  Jurisdiction  not  judicially  noticed,  32,  39. 

CONTEMPT.     See  INJUNCTIONS,  5. 

CONTRACTS.     See  EVIDENCE,  18-20,  40.     Pleading,  6,  7,  9. 
a.  Formation. 

1.  Courts  cannot  make  contracts  for  parties  nor  inquire  into 

wisdom  or  advisability  of  their  undertakings,  444,  457, 
957,  979. 

2.  Meeting  of  minds  essential,  580. 

3. on  each  provision  of  contract,  979. 

4.  Mistaken  report  of  agent,  misled  by  erroneous  cable,  that 

his  principal  had  accepted  a  certain  offer  does  not  effect 

a  meeting  of  the  minds,  576. 


INDEX.  1019 

CONTRACTS— Continued. 

a.  Formation — Continued. 

5.  Acceptance   necessary   to  turn   offer   into  contract,   must 

be  absolute,  in  identical  terms  of  offer  and  communi- 
cated to  proposer,  253,  1007,  1008,  1011. 

6.  A  request  for  terms  differing  from  the  offer  amounts  to 

a  counter  proposal  and  rejection,  1008,  1009. 

7.  Evidence    found    to    show    not    one    continuous    course    of 

dealing  between  parties  but  new  and  independent  con- 
tract resulting  from  counter  offer,  505. 

8.  Revocation    by   the    purchaser    is    permissible   up    to   the 

moment  of  acceptance,  1009. 

9.  Evidence  of  acceptance  found  insufficient,  Id. 

10.  Evidence  found  not  to  show  change  of  position  by  plain- 

tiff after  announcement  of  acceptance  and  before  notice 
of  mistake,  589. 

11.  Offer  may  be  accepted  by  deed  as  well  as  by  word  and 

acceptance  may  be  inferred  from  silence,  504. 

12.  Failure  to   read  a  written   instrument  before   signing  is 

ordinarily  no  ground  for  avoiding  its  terms;  ground 
for  invoking  exceptions  not  shown,  907-909,  952,  1008. 

13.  Evidence  of  fraud  in  execution  of  such  instrument  must 

be  clear  and  convincing,  909,  994. 

14.  Evidence  found  insufficient  to  show  delivery  of  letter  al- 

leged to  form  part  of  unilateral  contract,  217,  218. 

15.  One  who  signs  articles  of  an  association  will  usually  be 

treated  as  having  contracted  with  it,  274. 

16.  Form.     A  contract  is  none  the  less  "entered  into    *    *    * 

by  correspondence"  because  of  the  transmission  by 
one  party  to  the  other  of  a  blank  form  which  the  latter 
fails  to  sign,  955. 

17.  An   agent  who  fails   to   disclose  his   principal's  name  in 

making  a  contract  becomes  liable  individually  thereon. 
Id. 

18.  One  who  serves  another  without  a  definite  agreement  is 

entitled  to  compensation  on  quantum,  meruit,  254,  842. 

19.  Employee  may  recover  for  time  during  which  he  worked 

tho  he  leaves  before  expiration  of  employment,  842. 

20.  Evidence  found  to  show  a  contract  for  purchase  of  shares, 

241. 

21.  Such  contract  within  statute  of  frauds  but  memorandum 

required  thereby  need  be  signed  only  by  the  party 
against  whom  enforcement  sought,  242. 

22.  Before  partial  delivery  may  replace  the  memorandum  re- 

quired by  the  statute  of  frauds  the  contract  itself  must 
be  established,  735,  742. 


1020  INDEX. 

CONTRACTS— Continued. 

b.  Legality  of  Object. 

23.  Wagering,  void,  112,  120. 

24.  Evidence  found  insufficient  to  show  plaintiff's  knowledge 

of  defendant's  intent  to  make  contract  a  wagering  one 
and  recovery  allowed,  234. 

25.  Money  loaned  to  promote  unlawful  object  not  recoverable, 

428. 
28.  Lender's   knowledge    of   unlawful    object    inferable    from 
circumstances,  432. 

27.  Agreement  intended  to  disturb  the  peace  or  sovereignty 

of  a  friendly  power  is  unenforcible  as  against  any  of 
the  parties  thereto,  641. 

28.  But  money  entrusted  to  an  agent  by  one  of  said  parties 

to  be  paid  thereon  may  be  recovered  back  before  pay- 
ment, 646. 

29.  An  undertaking  whose  evident  purpose  is  to  stifle  compe- 

tition will  not  be  enforced,  277. 

30.  The  common  law  repugnance  to  contracts  in  restraint  of 

trade  has  been  much  modified,  766,  767. 

31.  Limits  of  time  and  area  no  longer  the  controlling  tests; 

that  of  reasonableness  applied,  821,  822. 

32.  Prohibition  of  entering  at  any  time,  anywhere  in  China, 

other  similar  employment  in  a  business  of  which  em- 
ployer has  but  one  plant,  is  indivisible  and  unreason- 
able; but  a  prohibition  of  divulging  trade  secrets  is 
separable  from  the  above  and  enforcible,  827-830. 

33.  Such  a  contract  when  valid  may  be  enforced  by  injunc- 

tion as  a  method  of  negative  specific  performance,  768, 
830,  999,  1000. 

34.  Charter  party  not  avoided  by  false  registration  of  vessel 

nor  by  its  use  in  transporting  coolies  from  one  foreign 
port  to  another,  133. 

c.  Operation. 

35.  Evidence    found    insufficient   to    show   that   net    earnings 

under  the  contract  in  suit  reached  amount  authorizing 
dividend,  446. 

36.  A  voluntary  payment  must  be  applied  in  accordance  with 

the  debtor's  intention,  959. 

37.  A  subsequent  agreement  upon  the  same  subject  as  a  prior 

one,  but  inconsistent  therewith,  supersedes  it  even  with- 
out express  provision,  461. 

38.  Provision  for  payment  by  instalments  may  be  waived  by 

contractor  but  such  waiver  neither  binds  the  contractee 
nor  constitutes  an  acceptance  of  the  work,  561. 


INDEX.  1021 

CONTRACTS — Continued. 

d.  Interpretation. 

39.  Rule  of  contra  proferentem  applied,  737,  803,  807. 

40.  A  contract  to  "complete  in  a  satisfactory  manner"  a  tank 

for  storage  of  oil  is  not  performed  by  constructing  a 
leaky  tank,  563. 

41.  A  "guarantee"  in  a  contract  for  the  construction  of  to- 

bacco cutters  "that  said  machines  are  in  good  working 
condition"  construed  as  limited  to  time  of  delivery,  921. 

42.  A  further  provision  that  "this  agreement     *     *     *     shall 

terminate"  upon  delivery  and  payment,  relieves  the 
contractor  from  liability  for  subsequent  occurrences. 
Id. 

43.  Evidence  found   insufficient  to   show  that   said   machines 

were  not  in  working  order  at  the  time  of  delivery,  Id. 

e.  Performance  and  Breach. 

44.  Negligence  in  performing  a  contract  is  not  shown  where 

party  complained  of  acts  within  its  provisions,  910. 

45.  Evidence  found  insufficient  to  show  acceptance  or  wrong- 

ful prevention  of  completion  or  that  defects  were  due 
to  improper  material,  561. 

46.  Rescission,  as  a  contractual  right  distinguished  from  can- 

cellation as  an  equitable  remedy,  886. 

47.  Doubtful    whether    right    to    rescind    arises    from    mere 

delivery  of  goods  not  specified,  887. 

48.  Rescission   for   fraud   requires    that   all    its    elements    be 

proven,  994. 

49.  Showing  which  fails  to  establish  that  the  applicant  relied 

on  the  alleged  misrepi-esentation  to  his  damage  is  in- 
sufficient, 996,  997. 
/.  Damages. 

50.  Not   every    departure   from    the   terms    of    a    contract    is 

actionable.  There  may  be  damnum  absque  injuria  or 
injuria  sine  damno,  468. 

51.  Only   actual  or   compensatory,  recoverable  in   absence   of 

malice  or  gross  negligence,  595;  cf.  611. 

52.  Loss  of  profits  constitutes  a  proper  item  of  damage  for 

a  breach  of  contract  only  so  far  as  it  could  reasonably 
have  been  foreseen  by  the  parties  when  they  made  it, 
740,  741,  922,  923. 

53.  Profits    from    collateral    enterprise    or    subcontract    not 

usually  allowable,  923. 

54.  Contingent    liability    for    services    rendered    one    of    the 

parties  to  a  contract  by  a  stranger  before  the  same 
is  entered  into  is  not  a  proper  item  of  damage  in  an 
action  for  breach  of  said  contract,  467,  468. 


1022  INDEX. 

CONTRACTS— Continued. 

/.  Damages — Continued. 

55.  Damagres  based  on  "making  up  price"  adopted  by  Stock 

Exchange,  243. 

56.  Damages  for  breach  of  contract  for  use  of  theatre  fixed 

from  booking  sheets  with  deductions  for  unpaid  reser- 
vations and  profits  otherwise  earned,  291. 

57.  Measure  of  such  recovery  is  difference  between  "making- 

up"  and  buying  price  plus  brokerage,  234. 

58.  Where  broker  acts  for  both  parties  and  claims  commis- 

sions from  each,  recovery  will  be  denied,  233. 

59.  Advance  payments  to  such  agent  on  the  purchase  price 

may  be  recovered  back  in  case  of  non-delivery  with 
interest  at  8'A ,  955,  956. 

g.  Special  Forms. 

(1)    Employment. 

60.  Instrument  set  out  and  considered  as  contract  of  employ- 

ment, 725-727. 

61.  Salary   mentioned    therein    found   to   have   been    promised 

plaintiff  for  special  services  and  not  as  director,  730. 

62.  Phrase    "best    part   of    his    time    and    ability"    to    which 

plaintiff  was  required  to  devote  himself  considered  to 
mean  major  portion  which  had  not  been  given,  728,  729. 

63.  Clause  providing  that  plaintiff  "becomes  a  director"  of  the 

corporation  which  constitutes  the  other  party  to  the 
contract,  is  void  as  against  public  policy,  730. 

64.  Allowance    of    commissions    on    "your    net   marine    sales" 

covers  not  only  first  sales  to  customers  obtained  by 
employee  but  also  subsequent  tho  unsolicited  ones,  219. 

65.  Plaintiff's  services  found  to  have  been  continuous  and  his 

commissions  due  until  paid,  219. 

66.  A  contract  of  employment  whose  duration  is  not  expressly 

fixed,  is  terminable  at  will  of  either  party,  731,  732. 

67.  A  contract  conditioned  upon  the  employee  "doing  his  work 

in  an  efficient  and  satisfactory  way"  cannot  be  ter- 
minated by  the  employer  on  a  ground  independent  of  the 
way  in  which  such  work  was  done,  968-972. 

68.  A  notice,  which  does  not  purport  to  take  effect  at  once, 

to  terminate  a  contract  of  employment,  will  not  relieve 
an  employee,  so  long  as  .he  continues  in  the  employment 
service,  from  his  obligation  to  perform  a  subsidiary 
contract,  735,  742,  743. 

69.  After   discharge,  tho  wrongful,  employee  must  seek   and 

accept  other  employment  and  any  amount  earned  or 
which  might  have  been  earned  thereby  must  be  applied 
in  mitigation  of  his  damages,  805. 


INDEX.  1023 

CONTRACTS — Continued. 

y.  Special  Forms — Continued. 

(1)  Employment — Continued. 

70.  An  undertaking  to  "pay  the  traveling  expenses"   of  an 

employee  in  returning  home  is  not  discharged  merely  by 
reserving  passage  or  offering  to  provide  it  within  a 
limited  time ;  nor  is  the  employee  entitled  thereto  unless 
he  actually  returns,  806,  807. 

71.  A  partnership  employee  who  has  tendered  his  resignation 

cannot  complain  if  his  employment  is  terminated  while 
such  resignation  is  pending,  511. 

72.  In    an    action    for    wrongful    termination    of    employment 

contract,  as  distinguished  from  action  for  salary,  the 
measure  of  damages  is  the  amount  the  employee  would 
have  received  thereunder,  less  any  payments  on  outside 
earnings,  976-978. 

(2)  Guaranty. 

73.  Language  of,  considered  most  strongly  against  guarantor, 

958. 

74.  Continuing,  does  not  require  notice  to  guarantor  of  each 

item  of  credit  extended,  958. 

75.  Acceptance  and   notice   are  effected   where  both   creditor 

and  guarantor  signed  the  instrument  which  embodies 
it,  959. 

76.  Notice  of  acceptance  not  necessary  where  guarantor  per- 

sonally interested  in  subject  matter,  265. 

77.  Notice  of  default   necessary  unless   expressly  waived   or 

the  guaranty  covers  debt  already  due,  266. 

78.  Such  notice  should  be  given  within   reasonable  time  but 

failure  releases  guarantor  only  so  far  as  he  has  been 
prejudiced,  268. 

(3)  Partnership. 

79.  A  partner  may  bind  the  firm  in   such  contracts  only  as 

are  in  the  ordinary  course  of  the  partnership  business, 
513. 

80.  A  secret  agreement  with  an  employee  increasing  his  ad- 

vantages at  the  firm's  expense  is  not  in  ordinary  course. 
Id. 

81.  An  instrument  not  in  the  firm  name  and  signed  by  but 

one  partner  binds  the  firm  only  when  ratified  by  the 
others,  514. 

82.  Resignation  of  employee,  tho  sent  to  one  partner,  may    be 

accepted  by  another,  especially  if  the  latter  has  been 
designated  as  the  firm's  "Manager,"  Id. 

(4)  Sales. 

83.  "In  the  contracts  of  merchants  time  is  of  the  essence," 

297,  333. 


1024  INDEX. 

CONTRACTS — Continued. 
(4)   Sales — Continued. 

84.  A   contract   to   ship   cargo   "during  February"  is  broken 

if  shipment  is  not  made  until  March,  297,  333,  980. 

85.  Such  delay  found  not  to   have  been   waived  or  excused. 

302,  339,  982. 

86.  Nor  due  to  force  majeure,  982. 

87.  The  rule  of  ejusdem  generis  explained  and  applied,  303, 

337. 

88.  Place  of  shipment  named  in  contract  is  a  material  require- 

ment w^hose   non-observance  entitles  vendee  to   rescind 
and  recover  back  defendant's  payments,  768,  771. 

89.  The    vendor    of    commodities    intended    for    resale    must 

furnish  those  of  merchantable  quality,  506. 

90.  Whether  commodity  furnished  under  a  contract  complied 

with  its  requirements  is  a  question  of  law,  746,  747. 

91.  Substantial,    tho    not    literal,    compliance    with    such    re- 

quirements exacted,   747. 

92.  Where  part  only  of   a   consignment  furnished  under   an 

entire   contract    substantially    complies,    vendee    is    not 
obliged  to  accept  delivery,  751. 

93.  Where   commodities    are   purchased   for   resale,    proof   of 

substantial   performance  must  include  a   showing  that 
any  variations  will  not  affect  marketability,  751. 

94.  Vendor  not  entitled  to  retain  advance  pajrments  without 

such  a  showing,  752. 

95.  Measure  of  damages  where  vendee  receives  delayed  cargo 

under   protest  is   difference  between   highest   price   ob- 
tainable  and   purchase   price  with   interest   and   neces- 
sary charges,  340. 
CONTRIBUTORY  NEGLIGENCE. 

1.  Defined,  559. 

2.  Bars  recovery,  558,  560. 

3.  In  Federal  Courts  burden  is  on  defendant  to  prove,  but 

may  appear  from  plaintiff's  evidence,  559,  593. 
CONVERSION.     See   Crimes,  58-61,  65. 
CORONER.     See  Jury,  2. 

CORPORATIONS.      See    CRIMES,    4-6.      JUDGMENTS,    2.      LAW,    11.      PRO- 
CESS, 1,  2. 

1.  Act  of  Congress  of  Mai'ch  2,   1903,  providing  for  incor- 

poration held  available  in  China,  655. 

2.  Filing  of  articles  of  incorporation  with  Clerk  of  United 

States  Court  and  Legation  held  sufficient,  662. 

3.  But  such  Clerk  is  required  to  file  and  record  only  articles 

which  comply  with  the  law  and  cannot  be  compelled  by 
tnandamtis  to  accept  others,  665. 

4.  Proposed  articles  found  insufficient,  664,  665. 


INDEX.  1025 

CORPORATIONS — Continued. 

5.  Requirements  in  act  of  Congress  of  June  6,  1900,  as  to  the 

filing  of  copies  of  charters  by  foreign  corporations  may 
be  invoked  in  China  by  the  American  government  alone, 
760. 

6.  Whether   such    requirements   are   "suitable"    and   "neces- 

sary" in  China  not  decided,  Id. 

7.  It  is  against  public  policy  for  a  corporation  to  enter  into 

a   contract   with   an   individual   to   make   him    director 
thereof,  730. 
COSTS. 

1.  Distinguished  from  fees,  891. 

2.  In  the  absence  of  provisions  in  Court  Regulations,  Amer- 

ican Courts  in  China  may  resort  to  Revised  Statutes 
for  authority  to  tax,  892. 

3.  Costs    for    depositions    taken    under    such    authority    are 

taxable  only  vi^hen  admitted  in  evidence,  Id. 

4.  No   authority   for   remitting   costs   or   fees   to   a   foreign 

plaintiff  tho  suing  in  forma  pauperis,  890. 
COUNTER-CLAIM.      See   SeT-OFF. 
COUNTERFEITING.      See   CRIMES,   40. 

Defined  and  distinguished,  739. 
COURT  COMMISSIONER.  See  COMMISSIONER. 
COURT  REGULATIONS. 

1.  By  the  commissioner,  8,  9. 

2.  Force  and  effect,  169-173,  222,  868. 

3.  British,  in  Turkey,  12. 
COURTS.      See    JUDGMENTS. 

I.American  in  China;  jurisdiction,  9-11, 

2. of  estates,  136. 

3. not  dependent  on  residence  of  parties,  603,  617. 

4. never   confined   strictly  to   China's  territorial   limits, 

398. 
5. extends  to  offences  committed  on  American  ships  "on 

the  high  seas,"  40,  57,  401,  915. 

6.  Consular    Courts.     Jurisdiction     of     American     Consular 

Courts  in  China  has  always  been  concurrent  only,  875. 

7.  While  the  act  of  Congress  of  March  2,  1909,  was  in  force 

the  only  functionary  authorized  to  preside  over  the 
Shanghai  Consular  Court  was  a  "Vice  Consul  General" 
by  the  abolition  of  which  office  the  jurisdiction  of  said 
court  lapsed  and  merged  with  that  of  the  United  States 
Court,  877,  878. 

8.  Whether   or   not    the   subsequent   act   purporting   to    vest 

"judicial  authority"  in  another  officer  was  effective  to 
undo  such  merger  and  recall  such  lapsed  jurisdiction, 
it  was  concurrent  only,  879-884. 

14008   O.    W. 65 


1026  INDEX. 

COXJBIS — Continued. 

9.  American  Consular  Courts  in  China  are  courts  of  record 

and   their   judgments   are   enforcible   in   New   York   at 
any  time  within  twenty  years,  469,  475. 

10.  Such  judgments  are  within  the  "faith  and  credit"  clause 

of  the  Federal  Constitution,  472,  473. 

11.  The  Judge  of  such  a  Court  has  power  to  refer  the  cause 

pending  therein  to  a  single  referee  and  to  render  judg- 
ment on  his  report,  476,  477. 

12.  Judgment  of  International  Mixed  Court,  set  out,   236-7. 

13.  Such  court  is  without  jurisdiction  to  annul  confirmation 

of  deed  by  superior  Chinese  official,  238. 

14.  U.  S.  Court  for  China  has  jurisdiction  in  divorce  cases, 

369-372,  483. 

15.  Also  in  proceedings  in  rem  regardless  of  defendant's  res- 

idence or  nationality,  484. 

16.  Also   to   annul   marriage   contract  on   grounds  justifying 

such  relief  in  case  of  other  contracts,  325. 

17.  Also  vested  with  certain  authority  regarding  estates  of 

American  seamen  dying  abroad,  previously  exercised  by 
Federal  Courts  in  United  States,  717. 

18.  Criminal  jurisdiction  of  United  States  Court  for  China  is 

dual,  being  derived  in  part  from  treaties  and  in  part 
from  statutes  penalizing  offences  committed  outside  of 
China,   403. 
CRIMES. 

a.  In  General. 

1.  Distinction  between  principals  and  accessories  abolished, 

415,  962,  963. 

2.  But  classification  of  principals  into  first  and  second  de- 

grees retained,  416. 

3.  Aiding  and   abetting  which   renders   one   responsible  for 

commission  of  crime  need  not  be  indispensable,  963. 

4.  Corporations  are  subject  to  criminal   liability;   evolution 

of  such  liability  traced,  984-987. 

5.  Ignorance  of  the  directors  is  no  excuse,  988,  989. 

6.  Fine   is   the   only   penalty   for    such    an   offender    and   it 

should  be  substantial  where  the  offence  is  also  punish- 
able by  imprisonment,  988. 

7.  Juvenile    offenders,    not   to   be   treated   in    same   way   as 

adults,   688. 

8.  Congressional  Juvenile  Court  law  held  available  and  of- 

fender  given    indeterminate    sentence   thereunder,    689, 
690. 

9.  Self-defense;  credit  for,  680. 

10.  Force   used   in   self-defense   is   excusable  only   so   far  as 

reasonably  necessary,  575. 


INDEX.  1027 

CRIMES — Continued. 

a.  In  General — Continued. 

11.  Burden    (not  met  here)   is  on  the  accused  to  prove  self- 

defense  and  reasonable  precautions,  including  retreat  if 
practicable,  to  prevent  attack,  Id. 

12.  Drunkenness  affords  no  legal  excuse  for  crime  but  may  be 

considered  in  fixing  penalty,  548,  549   (note). 

13.  Commission  of  crime  under  influence  of  drugs  not  excused 

though  classified  as  of  lower  degree,  417,  418. 

14.  Plea  of  guilty  not  an  extenuating  circumstance,  517. 

15.  Reasonable  doubt  defined,  963. 

16.  Rule  of,  applied,  555,  963  and  note. 
h.  Punishment. 

17.  Treaty  provisions,  1-3. 

18.  Jurisdiction    to   punish   includes    power   to    make   punish- 

ment effective,  399. 

19.  Penalties   fixed  by   act  of   Congress   held   subject  to    dis- 

cretionary application   by   American   Courts   in    China, 
285. 

20.  Should  be  preventive  and  not  vindictive,  306. 

21.  Other    charges    against    accused    may    be    considered    in 

fixing,  306. 

22.  Minimum  not  ordinarily   imposed   for   second   offence   of 

same  character,  307. 

23.  Imprisonment  for  libel  imposed  on  second  offender,  495. 

24.  Maximum  penalty  imposed  upon  second  offender  but  re- 

duction  allowed  in   case   of  another   who   had   pleaded 
guilty,   479. 

25.  Penalty    imposed    with    application    of    two    extenuating 

circumstances,   418. 

26.  Maximum,    ordinarily    imposed   where    there   are   several 

aggravating,   and    no    extenuating   circumstances,    517. 
Cf.  520. 

27.  Inadequacy  of,  for  opium  traffic,  522,  523,  524,  903. 

28.  Carrying  concealed  iveapons   punished  by  fine  where  ac- 

cused had  already  been  sentenced  to  imprisonment  for 
assault  in  connection  with  the  same  affair,  576. 

29.  Where  the  prosecution  is  under  the  common  law  and  no 

penalty  is  prescribed  discretionary  punishment  may  be 
imposed,  326. 

30.  A  recommendation  of  clemency  by  the  prosecutor  because 

the    accused    has    turned    "state's    evidence"    will    ordi- 
narily be  adopted,  787. 

c.  Specific  Offenses. 

(1)   Assault. 

31.  Consists  of  two  grades,  the  more  serious  of  which  can  be 

committed  only  with  "intent  to  do  bodily  harm,"  788, 
790. 


1028  INDEX. 

CRIMES — Continued. 

(1)  Assault — Continued. 

32.  Merely  pointing  an  unloaded  pistol  at  another  is  a  simple 

assault  but  not  one  with  a  "dangerous  weapon,"  130. 

33.  Display  of  firearm  "in  a  menacing  manner"  constitutes, 

though  neither  held  horizontally  nor  actually  pointed 
at  another  nor  really  dangerous — provided  latter  be- 
lieved that  it  was,  621. 

34.  While  the  use  of  insulting  or  opprobrious  words  will  not 

justify  an  assault  they  may  be  considered  in  mitigation 
of  the  penalty,  915,  916. 

(2)  Conspiracy. 

35.  Conspirators  need  have  no  previous  acquaintance  with  nor 

knowledge  of  exact  part  performed  by  each  other,  799, 
SOO. 

36.  Nor  need  more  than  one  of  them  commit  an  overt  act,  800. 

37.  Nor  need  the  conspiracy  succeed  nor  be  shown  possible  of 

consummation,  903. 

38.  The  penalty  may  be  more  severe  than  for  the  crime  to 

commit  which  conspiracy  was  formed.  Id. 

39.  Evidence  found  sufficient  to  convict,  Id. 

(3)  Counterfeiting. 

40.  In  prosecution  for  uttering  forged  or  counterfeit  currency, 

knowledge  of  its  character  and  criminal  intent  must 
be  proved  independently  of  act  of  uttering,  556. 

(4)  Defamation.     See  also  title  Defamation, 

41.  Libel  defined,  486. 

42.  Malice  defined,  489. 

43.  A  publication  charging  attorneys  with  receiving  fees  from 

both  parties  to  a  cause  and  being  reprimanded  by  the 
court  is  libelous  per  se,  486. 

44.  Such  charge  may  be  justified  only  by  showing  that  it  is 

true  and  published  with  good  motives  and  for  justifiable 
ends,  487. 

45.  Burden  rests  upon   defendant  to  prove  justification   and 

showing  found  insufficient,  494,  495. 

46.  Evidence  aliunde  is  admissible  where  publication  is  ambig- 

uous to  show  what  parties  were  intended,  486. 

47.  Slander  not  a  crime  at  common  law,  735. 

48.  Under  act  of  Congress  extended  to  China  a  false  imputa- 

tion against  female  chastity  is  penalized,  Id. 

49.  It  is   not  a   sufficient  justification   for   one   to   repeat  or 

circulate  such  a  charge  that  he  heard  it  from  another, 
734. 


INDEX.  1029 

CRIMES — Continued. 

(5)  Desertion. 

50.  From  Navy  an  offense  at  common  law  and  under  naval 

regulations,  287,  289. 

(6)  Disorderly  Houses. 

51.  Keeping    of,    punishable    as    a    nuisance    under    common 

law,  326. 

52.  Acts   committed  by  frequenters   thereof,   though   outside, 

may   be   considered    in    determining   character   of    such 
house,  329. 

53.  Punishment    is    not    prevented    because    keeper    of    such 

house    is    also    punishable    for    selling    liquors    without 
license,  330. 

(7)  Embezzlement. 

54.  Defined,  683. 

55.  Special  acts  of  Congress  defining  and  penalizing  applied, 

199. 

56.  Legation  clerk  to  whom  government  money  is  entrusted 

by  official  in  charge  of  legation,  is  latter's  "agent"  or 
"servant"  within  meaning  of  said  acts,  198. 

57.  Essence   of,   more  than   of   most   crimes,   is   felonious   in- 

tent, 684. 

58.  Conversion  an  essential  ingredient  of,  375,  382,  391,  683. 

59.  But  is  not  effected  merely  by  selling  or  attempting  to  sell, 

tho   at   reduced   price,   goods   held   by   bailee   for    sale, 
372,  374. 

60.  Secreting  with  intent  to  convert  is  a  distinct  offense  and 

requires  proof  of  such  intent,  375,  376. 

61.  Neither  conversion  nor  felonious  concealment  is  effected 

by  a  mortgagee  by  deposit  of  title   deeds  who   merely 
exercises  his  right  of  repledge,  391,  392. 

62.  Such   concealment   must   be   one    "whereby   the    estate    or 

right"  of  another  "shall  or  may  be  defeated,  injured  or 
altered,"  392. 

63.  Secrecy  and  concealment  are   usual   accompaniments   of, 

and   their   absence    tends    to   raise    presumption    of    in- 
nocence, 685. 

64.  Using  employer's  funds,  which  he  was  authorized  to  ex- 

pend  for   company   purposes,   in   making   a   journey   to 
the  home  office,  does  not  constitute  conversion,  686. 

65.  Evidence  of  conversion  found  sufficient,  198. 

66.  Penalty,  549   (note) . 

(8)  Escape. 

67.  Physical   restraint  not   necessary   to   commission   of,   nor 

is  locality  an  ingredient,  451,  454. 


1030  INDEX. 

CRIMES — Continued. 

(8)  Escape — Continued. 

68.  Otficer's  custody  continues  until  prisoner  is  delivered  to 

other  proper  authority  and  relation  cannot  be  changed 
by  collusive  agreement,  456. 

69.  Maximum  penalty  imposed  on  habitual  offender,  457. 

70.  U.  S.  Court  for  China  has  jurisdiction  to  punish  for  the 

crime  of  aiding  a  prisoner  to  escape,  committed  on  a 
government  vessel  on  the  high  seas,  395. 

71.  Such  offence  is  one  of  extreme  gravity  since  it  frustrates 

the  administration  of  justice,  409. 

72.  Commission  of  such  offence  found  established  by  defend- 

ant's own  statement;  penalty  accordingly,  411,  412. 

73.  Evidence  found  sufficient  to  show  that  accused  aided  es- 

cape of  fellow  prisoner  but  that  assault  on  prison  guard 
was  to  effect  his  own  escape,  284. 

(9)  False  Pretenses. 

74.  Evidence  found  insufficient  to  establish,  394. 

75.  Question  of  joinder  with  embezzlement  not  decided,  Id. 

76.  Obtaining   property   by,    an    offence    under   common    law, 

123. 

77.  Also  by  statutes  in  force  over  Americans  in  China,  126. 

78.  Must  include  false  representation  as  to  some  existing  or 

preexisting   fact,   127. 

79.  Information  charging,  held  insufficient,  128. 

80.  Penalty,  688   (note). 

(10)  Forgery. 

81.  Acts  of  Congress  penalizing,  applied,  305. 

(11)  Gambling. 

82.  Act  of  Congress  of   March   3,  1901,  prohibiting  keeping 

and  use  of  gambling  devices,  applied,  210,  247. 

83.  Agent  or  servant  of  owner  subject  to  provisions  thereof 

and  defendant  found  to  be  such,  209,  210. 

84.  Actual  operation  of  such  devices  unnecessary,  248. 

(12)  Homicide. 

85.  Manslaughter  defined  and  found  to  have  been  committed 

but  with  extenuating  circumstances,  679,  680. 

86.  Evidence    reviewed    and    found    sufficient    to    convict    of 

involuntary  manslaughter  but  not  of  murder,  155,  167. 

87.  Evidence   found   insufficient  to    show   criminal    intent   or 

carelessness  constituting  manslaughter,  279. 

(13)  Larceny. 

88.  Where  defendant's  abstraction  of  a  revolver  was  an  in- 

cident of  his  escape  from  prison  for  which  he  had 
already  been  sentenced,  moderate  punishment  was  im- 
posed, 480. 


INDEX.  1031 

CRIMES — Continued. 

(13)  Larceny — Continued. 

89.  Indemnity  for  stolen  property  adjudged  of  one  convicted 

of  larceny,  630,  631. 

90.  Penalty,  688   (note). 

(14)  Liquor  Traffic. 

91.  Unauthorized  sale  of  intoxicating  liquors  by  Americans 

in  China  is  a  crime,  316. 

(15)  Misprision. 

92.  Information  found   not  to  charge   misprision  of   defend- 

ant's own  felony,  408. 

(16)  Perjury. 

93.  A  charge  that  the  accused  swore  that  "a  certain  pass- 

port was  issued  in  his  name,"  etc.,  is  not  supported  by 
evidence  that  he  merely  delivered  an  altered  passport 
to  an  official  without  a  statement  as  to  the  name  in 
which  it  was  issued  nor  for  whom,  788. 

(17)  Robbery. 

94.  Actual  violence  not  necessary,  519. 

95.  Evidence  of  "putting  in  fear"  found  sufficient,  Id. 

96.  Evidence  found  to  show  defendant's  guilt  as  principal  in 

second   degree,   415,   416. 

97.  Commission  of,  found  contributed  to  by  all  four  of  the 

accused,  962. 

(18)  Vagrancy. 

98.  Defined  and  discussed,  190,  194. 

99.  Information  charging,  held  sufficient,  189. 

100.  Evidence  found  not  to  establish,  194. 

101.  Bilibid  Prison  held  to  meet  requirements  of  vagrancy  act 

as  to  place  of  confinement,  543. 

CROSS-ACTIONS. 

In  Consular   Courts,  25,  27,   31    (note). 
CUSTOM. 

1.  Must  be  general,  841. 

2.  May  explain,  though  it  cannot  nullify,  the  provisions  of  a 

contract,  781. 

3.  Nor  override  positive  law,  229,  230,  781,  841. 

4.  Must  be  established  by  affirmative  proof,  229,  230. 

5.  Of  warehousemen,  enforced,  990. 

DAMAGES.     See   Carriers,    4-6.     Contracts,    50-59,   95.     Reforma- 
tion, 4. 

DECLARATIONS.     See  EVIDENCE,  35-38,  41. 


1032  INDEX. 

DEFAMATION.      See  CRIMES,  41-49.      PLEADING,  5. 

1.  A    fair    and   correct   report   of   a    judicial    proceeding    is 

qualifiedly  privileged  matter  which  may  ordinarily  be 
published  without  liability  except  for  malice,  354. 

2.  Application    by    police    officer    to    competent    tribunal    re- 

sulting in  issuance  of  writ  in  connection  with  pending 
criminal  inquiry  is  a  "judicial  proceeding"  within  mean- 
ing of  said  rule,  355. 

3.  Newspaper   statement  to   the   effect  that  a  warrant  had 

issued  against  plaintiff  and  that  he  was  "arrested"  and 
"in  custody"  found   not  to  "exceed  the  privilege,"  361. 

4.  Mere  overstatement  of  time  of  arrest  not  actionable  unless 

shown  to  have  caused  the  damage  complained  of,  364. 

DEFINITIONS.     See  WORDS  and  Phrases. 
DEPOSIT.     See  Mortgages,  3,  4. 
DEPOSITIONS.     See  COSTS,  3.     EVIDENCE,  53. 
DESERTION.     See  CRIMES,  50. 
DISCONTINUANCE.      See  PROCEDURE,  3,  4. 
DISORDERLY  HOUSES.      See  CRIMES,  51-53. 
DISTRIBUTION.     See  Administration  of  Estates,  6. 
DISTRICT  ATTORNEY. 

1.  Should  appear  in  "all  civil  actions  in  which  United  States 

are  concerned,"  419. 

2.  May  call  to  his  assistance  in  special  cases  another  member 

of  the  Bar  who  may  act  temporarily  without  commission 
or  oath,  832,  833. 

3.  Has  no  exclusive  right  to  institute   disbarment  proceed- 

ings, 834. 

DIVISIBILITY.     See  CONTRACTS,  32. 
DIVORCE.     See   COURTS,   14-16.     WiLLS,   28. 

1.  A  suit  for  divorce  without  alimony  or  other  relief  is  a 

proceeding  in  rem,  480. 

2.  Grounds  of,  in  U.  S.  Court  for  China,  are  prescribed  by 

act  of  Congress  of  March  3,  1901,  but  effect  of  decree 
is   fixed  by  court   regulations,   sec.   51,  918. 

3.  Drunkenness  is  a  ground  for  absolute  divorce,  917,  919. 

4.  Desertion,  ground  for,  371. 

5.  Desertion  is  not  shown  by  mere  separation  as  the  result 

of  agreement,  934. 

6.  Residential  requirement  met  by  petitioner,  546.     Cf.  926. 

7.  Return  of  money  in  respondent's  possession  but  belonging^ 

to  petitioner  required  by  decree,  547. 


INDEX.  1033 

DIVORCE — Continued. 

8.  Corroboration  of  plaintiff's  testimony  as  to  admissions  of 

adultery  by  defendant  is  not  indispensable  where  latter, 
knowing  the  charge  against  him,  fails  to  traverse  it, 
837,  839. 

9.  Custody  of  the  children  can  not  be  controlled  by  stipula- 

tion between  the  parties;  the  interests  of  the  children 
are  the  prime  consideration,  837. 

10.  Alimony  awarded   with   reference  to   such   interests,   838, 

839. 

11.  Question    of    remarriage,    and    costs    left    to    courts    of 

defendant's  nationality,  484. 

12.  Affirmative    relief    may   be    granted    on    cross    bill    where 

petitioner  has  residential  qualification  though  respond- 
ent has  not,  499. 

13.  Award   of   alimony  to  the   extent   of   approximately  one- 

third  of  husband's  earning  held  not  unreasonable,  499. 

14.  Alimony  awarded  in  decree  may  be  set  aside  for  subse- 

quent adultery  of  wife,  but  evidence  must  be  clear  and 
convincing,  534-6. 

15.  Fee    allowed   respondent's    attorney   for    resisting   motion 

so  to  modify  decree,  537. 

16.  Effect,  371. 

17.  Former  jurisdiction  of  Consular  Courts  in,  11. 

18.  U.  S.  Court  for  China  has  jurisdiction  to  grant,  369-372, 

483. 

19.  Evidence  found  sufficient  to  require  decree  on  ground  of 

adultery,  484,  545,  690,  934. 

20.  Evidence  found  insufficient,  498. 

DOMICIL. 

1.  Defined,  92,  94,  95,  137-142. 

2.  May  be   acquired  by  foreigners   in   a   country   subject   to 

extraterritorial  jurisdiction,  103,  '104,  154. 

3.  Of  choice,  how  established,  136,  146. 

4.  ''Extraterritorial"  criticised,  151. 

DOUBLE  JEOPARDY.      See  PROCEDURE,  1. 
ELECTION.     See   Carriers,  7-9. 
EMBEZZLEMENT.      See  CRIMES,  54-66. 
EMINENT  DOMAIN.      See  EXPROPRIATION. 
EMPLOYMENT.      See    CONTRACTS,    60-72. 
EQUITABLE  ASSIGNMENT. 

An   order  upon   a   specific  fund   in   the  bank  creates   an 
equitable  lien  superior  to  a  subsequent  attachment,  107. 


1034  INDEX. 

EQUITY.     See  Reformation.     Words  and  Phrases   (Maxims). 
ESCAPE.     See  also   Crimes,   67-73. 
As  mark  of  guilt,  678. 
ESTOPPEL.     See  Contracts,  15. 

A  "statement  of  dividends"  submitted  by  one  party  to  the 

other  who  approves  it  and  afterward  effects  a  general 

settlement  with   the   first   party,   cannot  be   repudiated 

later  on  the  ground  that  the  figui'es  were  incorrect,  450. 

EVIDENCE.      See  Appeal,  3-5. 

Circumstantial,  432. 

1.  Importance  of,  799. 

2.  Latitude  in  receiving,  to  prove  conspiracy.  Id. 

3.  Must  exclude  every  other  reasonable  hypothesis,  783,  784. 

4.  Held  sufficient  to  convict,  284. 

5.  And  to  prove  death,  651. 
Presiimptions.     See  Citizenship,  1,  3. 

6.  Will  presumed  to  cover  entire  estate,  632. 

7.  Marital  status  once  established  presumed  to  continue,  845. 

8.  Presumption   of  continuance  of  life  after   disappearance 

may  be  overcome  by  presumption  of  good  faith  and 
innocence,  653. 

9.  Flight    of    accused    immediately    after    crime    considered 

a  mark  of  guilt,  678. 

10.  Failure    to    produce,    or    explain    the    non-production    of, 

documentary  evidence,  raises  the  presumption  that  it 
would  be  adverse,  795. 

11.  Failure  of  accused  to  testify  cannot  be  considered  against 

him  but  failure  to  call  witness  present  at  his  request 
by  suhpoina  justifies  the  inference  that  latter's  testi- 
mony would  be  adverse,  902,  903. 

Onus  Prohandi. 

12.  On  the  accused  to  prove  self-defense,  517. 

13.  The  possessor  of  another's   property,  taken  without  the 

owner's  consent,  has  the  burden  of  showing  that  his 
possession  is  innocent,  793,  846,  863,  864. 

14.  On  defendant  in   proceeding  for  libel  to  prove  justifica- 

tion, 494,  495. 

15.  On   carrier  to  prove  justification   for  refusing  to   accept 

freight,  618. 

16.  On   defendant,  when   plaintiff   in    action   to   recover   land 

produces  registered  title  deed,  79. 

17.  Where   the    information    alleges    that   the   accused   is   an 

American  citizen  the  burden  of  proving  the  contrary 
rests  upon  him,  478. 

18.  Party   seeking  recovery   on   contract   assumes  burden   of 

showing  that  his  claim  comes  within  its  terms,  444. 


INDEX.  1035 

EVIDENCE— Continued. 

Onus  Prohandi — Continued. 

19.  The  employer  who  terminates  a  contract  of  emplojnnent 

before  the  time  fixed  has  the  burden  of  proving  justi- 
fication and  also  possibility  of  outside  earnings  by 
employee,  804,  964,  977. 

20.  But   that   of  proving  justification   for   failure   to   accept 

other  employment  after  discharge  rests  upon  the  em- 
ployee, 804,  805. 

21.  Where  the  employer  admits  an  increase  of  the  employee's 

compensation  the  burden  is  on  the  former  to  show  that 
such  increase  was  only  temporary,  803. 

22.  In   the   Federal   Courts,   burden   of  proving  contributory 

negligence  rests  on  defendant  but  such  proof  may  ap- 
pear from  plaintiff's  own  evidence,  559,  593. 
Judicial  Notice. 

23.  Not  ordinarily  taken  of  foreign  law  which  is  presumed 

to  be  the  same  as  the  common  law  of  the  forum,  342. 

24.  Nor  of  consul's  jurisdiction,  32,  39. 

25.  Local  laws,  judicially  noticed  by  British  extraterritorial 

Courts,  66,  73,  83,  84. 

26.  Facts  judicially  noticed  not  admitted  by  plea  of  guilty, 

621. 
Admissibility . 

27.  Matters  not  put  in  issue  by  pleadings,  inadmissible,  564. 

28.  In  trials  before   the   Court   error   may  be   committed   by 

rejecting  but  never  by  receiving  evidence,  849. 

29.  Proposed   or  disputed   rule  intended  to   avoid  misleading 

jury  not  applicable  to  jurisdictions  where  all  trials 
are  by  the  Court,  676. 

30.  Principle  applied  to  attempted  limitation  upon  rule  which 

admits  in  evidence  acts  and  statements  in  the  accused's 
presence,  675,  676. 

31.  Record  of  Coroner's  inquest  admissible  in  subsequent  pros- 

ecution for  causing  death,  673. 

32.  Physician's  opinion  as  to  cause  of  death   admitted,  673, 

674. 

33.  Copies    of    parish    registers    duly    authenticated    and    ad- 

missible in  jurisdiction  where  issued  will,  in  extra- 
territorial courts,  be  admitted  to  prove  an  act  recorded 
therein,  700,  701. 

34.  Where  libelous  publication  is  ambiguous,  evidence  aliunde 

admissible  to  show  what  parties  were  intended,  486. 

35.  Declaration  of  one  co-conspirator  admissible  against  all, 

901. 

36.  Evidence   of    such    declarations   may   be   received   before 

conspiracy  is  fully  proved,  794. 


1036  INDEX. 

EVIDENCE— Continued. 

Admissibility — Continued. 

37.  Such  declarations  may  be  part  of  res  gestae,  792. 

38.  Evidence   of  prior,   extra-forensic   statements  by  witness 

for  the  prosecution,  inconsistent  with  his  testimony, 
admitted  by  way  of  impeachment,  795. 

39.  Of  transaction   with   decedent  inadmissible,   599. 

40.  Where  probated  will  is  out  of  the  jurisdiction,  certified 

copy  of  exemplified  original  is  admissible,  670. 

41.  Declarations  by  parties  to  a  written  instrument  prior  to 

its  execution  will  not  ordinarily  be  considered  to  vary 
its  terms,  906,  951,  952. 
Quantum    (Weight). 

42.  Rules   for    weighing   stated,   266. 

43.  Affirmative    prevails    over    negative,    267. 

44.  Chinese  testimony  weighed  by  same  rules  as  any  other, 

154,  162. 

45.  Testimony  of  accused  must  be  construed  with  due  allow- 

ance for  his  interest,  161,  165. 

46.  Marriage  of  defendant  in  a  criminal  cause  may  be  proved 

by  his  own  admissions,  785. 

47.  Adultery;    sufficiency    of    evidence    to    convict,    785. 

48.  Charge  of  adultery  held  not  established  by  disputed  and 

uncorroborated  testimony  of  a  single  witness,  498. 

49.  Identification  of  accused  held   sufficient,  679. 

50.  Rule  of  reasonable  doubt  applied,  549,  782,  784,  963  and 

(note). 

51.  Certified  copy  of  will  purporting  to  be  executed  by  British 

Registrar  of  "Principal  Probate  Registry"  authenti- 
cated by  seal  of  Probate  Division  of  High  Court  of 
Justice  sufficient  without  other  showing  as  to  certifier, 
669. 

52.  Preservation,  530. 

53.  A  former  trial  may  be  proved  by  transcript  sworn  to  by 

stenographer  who  need  not  be  an  official  one,  849. 

54.  Taking  of  depositions  in  China  governed  by  Act  of  Con^ 

gress  of  1789,  813. 

55.  Additional,  on  appeal,  183. 

EXECUTORS  AND  ADMINISTRATORS.      See  ADMINISTRATION  OF  ESTATES, 
7-14. 

EXEGESIS.     See  CONTRACTS,  39-43.     WILLS,  16-28. 

EXPATRIATION.      See  CITIZENSHIP,  9-11. 

EXPROPRIATION. 

Appraisement  of  damages  under  English  law,  74  et  seq. 


INDEX.  1037 

EXTRATERRITORIALITY.      See  ARBITRATION  AND  AWARD,  1.     CITIZEN- 
SHIP, 6.     Conflict  of  Laws.     Set-off,  2. 

1.  Defined,  71,  95. 

2.  Treaties  with  China,  granting,  1-3. 

3.  Rationale,  4-6,  120,  122. 

4.  History  of  British,  12  et  seq. 

5.  British  extended  legislation  under,  66,  74  et  seq. 

6.  Lex  loci  rei  sitae  not  affected  by,  66,  70.     But  see  212. 

7.  Validity  of  mortgage  registered  in  extraterritorial  counti'y 

determined  by  foreign  law,  212. 

8.  Federal  Constitution  not  extended  under,  40,  50. 

9.  Acts  of   Congress  passed  originally  for  Alaska   and  the 

District  of  Columbia  held  applicable  to   Americans   in 
China,  125. 

10.  Domicil  may  be  acquired  under,  103,  104,  154. 

11.  Does  not  change  rules  of  domicil,  136. 

12.  Extends  to  nation's  vessels,  58-65. 

13.  Jury  trial  not  required  in  extraterritorial  courts,  40,  50. 

FALSE  PRETENSES.      See  CRIMES,  74-80, 

FEES.     See  Costs. 

FORCE  MAJEURE.      See  CONTRACTS,  86. 

FORGERY.     See  Crimes,  81. 

FRAUD.     See  CONTRACTS,   13,  48. 

FOREIGN  LAWS.      See  EVIDENCE,  23,  24. 

GAMBLING.      See  CONTRACTS,  23-26.      CRIMES,  82-84. 

GUARANTY.     See    CONTRACTS,    73-78.     PARTIES,   3. 

HABEAS  CORPUS. 

Jurisdiction  of  Consular  Courts,  11. 
HIGHWAYS. 

1.  Rights  of  motorists  and  of  pedestrians  on  public  streets 

are  equal  but  each  must  keep  a  lookout  for  the  other, 
593. 

2.  But  pedestrian  not  required  to  observe  rule  of  "look  and 

listen"   and   may   expect   motorist  to   obey   policeman's 
signal  to  stop,  592,  593. 

3.  Motorist    must    exercise    special    care    at    crossings    land 

corners,  592. 

HOMICIDE.     See  CRIMES,  85-87. 

IMPEACHMENT.      See   EVIDENCE,  37. 

INFANCY.     See  CITIZENSHIP,  7,  11.     Crimes,  7,  8, 

INFOIIMATION.     See  Pleading,  15-19. 


1038  INDEX. 

INHERITANCE.      See  SUCCESSION. 
INJUNCTIONS. 

1.  Available  only  in  absence  of  adequate  legal  remedy,  887. 

2.  When  sought  as  ancillary  to  the  main  relief,  right  to  the 

latter  must  be  clear.  Id. 

3.  Available   to    prevent   breach    of   valid    contract   by   em- 

ployee not  to  engage  in  competitive  business,  768,  830, 
999,  1000. 

4.  Form  of  bill  for  such  injunction  set  out,  762-765. 

5.  Violation   of,  constituting  contempt,  must  be  established 

by  evidence  equivalent  to  that  required  for  convic- 
tion of  crime,  820. 

INTEREST.     See  Contracts,  59.    Judgments,  3,  4. 

INTERVENTION.     See  APPEAL,  6. 

1.  In  proceeding  to  set  off  judgments,  allowed  in  favor  of 

judgment  lienor  against  whom  another  judgment  is 
meanwhile  rendered  by  the  same  court,  259  (reversing 
225). 

2.  Order  denying  such  intervention  is  final   and  reviewable 

on  appeal,  257. 
INTESTATE  SUCCESSION.      See  SUCCESSION. 
INTOXICATING  LIQUORS.       See  CRIMES,  12. 

American  legislation  on,  reviewed,  311-315. 
JAPAN. 

Treaties  between,  and  the  United  States,  40,  51-55. 
JEOPARDY.      See  PROCEDURE,   1. 

JOINDER.     See  Actions,  2.     Crimes,  60,  75.     Parties,  3,  4. 
JUDGMENTS.     See  COURTS,  9-12.     Intervention.     Parties,  2. 

1.  Only   claims   properly   pleaded   are  entitled   to   adjudica- 

tion, 561,  564. 

2.  An   agent  upon  whom   a   summons   may   be   served   may 

confess  judgment  against  a  corporate  defendant,  808, 
809. 

3.  Interest  at  12  per  cent  is  allowed  on  judgments  rendere^J 

by  American   Courts  in   China,  868. 

4.  Interest  allowed  from  date  when  claim  should  have  been 

paid,  842. 

JUDICIAL  NOTICE.     See  Evidence,  23-25. 
JURISDICTION.     See  also   COURTS. 

Defined,  639, 
JURY.     See   Evidence,  29-31. 

1.  Not    provided    in    American    extraterritorial    courts,    40 

50,  478. 

2.  Record    of    Coroner's    inquest    admissible    in    subsequent 

prosecution  for  causing  death,  673. 


INDEX.  1039 

JUSTIFICATION.     See  Crimes,  34,  44,  45,  49. 

LACHES. 

Long    delay   in    suing   may   cast    suspicion   on   claim    and 
support  plea  of  settlement,  435, 

LAND  TENURE.     See  Real  PROPERTY. 
LAND  TITLES.      See  REAL  PROPERTY, 
LARCENY.     See  Crimes,  88-90, 
LAW,     See  Conflict  of  Laws, 
Generally. 

1.  Governing  Americans  in   China ;  elements,  7-9. 

2.  "Common  Law"  defined,  84,  87,  113,  123,  228. 

3.  Includes  ancient  statutes,  124. 

4.  Chinese   law   applied   by   British    extraterritorial    Courts 

in  China  as  regards  land,  80,  389. 

5.  Mohammedan  law  similarly  applied  in   Zanzibar,  66,   73, 

6.  Chinese  legislation  not  enforcible  against  Americans  by 

criminal  prosecution,  348,  349. 

7.  Chinese    anti-opium    legislation    concurred    in    by    British 

Government  enforcible  against  British  subjects,  351-354. 

8.  Shanghai  municipal  ordinances  enforcible  against  Amer- 

icans, 350-1. 
Statutes.     See  also  Table,  ante,  pp.  1-lx. 

9.  Interpretation,   172. 

10.  General  acts  of  Congress  applied  in  extraterritorial  juris- 

diction in  preference  to  those  intended  for  a  particular 
area,   786,   810,   890,   892. 

11.  Where  the  special  act  merely  supplements  a  general  one 

and  is  consistent  therewith  both  may  be  applied,  810. 

12.  The   act   of   Congress   of   1789   governing  the   production 

of  evidence  is  a  general  act  and  will  be  so  applied,  813. 

13.  Federal    Bankruptcy   Act  cited  as  example  of  a  general 

"law  of  the  United  States,"  897,  898. 

14.  Acts  of   Congress  passed  originally  for   Alaska   and  the 

District  of  Columbia  held  applicable  to  Americans  in 
China,  125,  187,  188,  199,  209,  210,  285,  305,  311,  400, 
472,  525,  544,  655,  899,  937,  951. 

15.  An  act  of  Congress  exempting  all  corporations  from  civil 

process  except  in  the  district  of  their  origin  not  suitable 
to  conditions  in  China,  638. 

16.  An  act  of  Congress  is  not  unsuitable  for  extension  merely 

by  lack  of  an  institution  wherein  the  penalty  for  its 
violation  may  be  served,  541. 

17.  Federal  Constitution  not  included  in  "laws  of  the  United 

States"  extended  over  Americans  in  certain  foreign 
countries,  50,  311,  478. 


1040  INDEX. 

LAW — Continued. 

Statutes — Continued. 

18.  But  such  laws  do  include  certain  penal  statutes  of  Mary- 

land continued  in  the  District  of   Columbia  by  act  of 
Congress,   478,  479. 

19.  White  Slave  Traffic  Act  of  Congress  in  force  over  Amer- 

icans in   China,  262. 

20.  Laws  of  the  United  States  extended  to  China  by  acts  of 

Congress  may  be  withdrawn  only  by  similar  act,  657. 

21.  Practice    of   extending   laws   to    another    jurisdiction    re- 

viewed, 658,  659. 

22.  Jurisdiction    conferred    upon    court,    similar    to    that    al- 

ready enjoyed  by  another,  is  treated  as  concurrent  un- 
less expressly  declared  to  be  exclusive,  880-883. 

23.  Coyisidur  conrt  regulations  govern  procedure  of  all  Amer- 

ican Courts  in  China  except  so  far  as  modified  and  sup- 
plemented by  Judge   of   the   United    States   Court   and 
prevail  even  over  inconsistent  acts  of  Congress,  169,  173, 
222,  868. 
LEGISLATION.    See  Law.    Succession,  9. 

Evident  clerical  error  in  drafting  act  of  Congress  of  Feb- 
ruary 23,  1887,  521. 
LEX   DOMICILII. 

Governs  administration  of  estates,  104. 

LEX  FORI.     See  CONFLICT  OF  Laws,  1. 

Limitation  of  actions  governed  by,  when,  82. 

LEX  REI  SITAE. 

1.  Governs  incidents  of  land,  66,  70,  80. 

2.  Also  descent  of  real  property,  539. 

3.  Limitation  of  actions  governed  by,  when,  83. 

LIBEL.     See  CRIMES,  41-49.     Defamation. 

LIENS.     See  Equitable  Assignment.     Warehousemen. 

LIQUIDATOR. 

Considered  as  corresponding  to   receiver,  245. 

LIQUORS.     See  Crimes,  91. 
MANDAMUS.     See  Corporations,  3. 
MARRIAGE.      See  DIVORCE. 

1.  A  civil  contract,  319. 

2.  Jurisdiction  to  annul,  accrues  to  the  U.  S.  Court  for  China 

from  several  sources,  325,  924. 

3.  Such    jurisdiction    is    not    affected    by    defendant's    alien- 

age, 926. 

4.  Existence  of  a  prior  valid  marriage  a  ground  for  exercise 

of  such  jurisdiction,  925. 


INDEX.  1041 

MARRIAGE — Continued. 

5.  Grounds  of  annulment  are  those  applicable  to  ordinary 

contracts,  325. 

6.  One  who  admits  performance  of  marriage  ceremony  has 

more  than  usual  burden  to  prove  want  of  consent  there- 
to, 367. 

7.  Such  burden  found  not  to  have  been  met,  Id. 

8.  Implied  consent  and  acquiescence  by  silence  during  cere- 

mony will  suffice,  Id. 

9.  Plaintiff  found  to  have  shown  statutory  two  years  res- 

idence required  for  such  relief,  926. 

MASTER   AND   SERVANT.      See   CONTRACTS,   60-72. 
MAXIMS.     See  WoRDs  AND  Phrases. 
MEETING  OF  MINDS.      See  CONTRACTS,  2-6. 
MERGER.     See  COURTS,  7,  8. 
MISPRISION.     See  Crimes,  92. 

MISTAKE.      See   REFORMATION. 

MOHAMMEDAN  LAW.      See  CONFLICT  OF  LAWS,  6.      LAW,  5. 

MONOPOLIES.     See  CONTRACTS,  29-33. 

MORTGAGES. 

1.  Validity    of,    in    extraterritorial    country    determined    by 

foreign  law,  212. 

2.  Not  entitled  to  registry  under  Spanish  law  nor  sufficient 

as  notice  unless  executed  before  notary,  213. 

3.  English   practice  of  mortgage  by   deposit  of  title  deeds 

appears  to  prevail  in  the  International   Settlement  of 
Shanghai,  389. 

4.  Mortgagee  may  repledge  deeds   and  mortgagor  may  re- 

deem from  submortgagee,  390. 

MURDER.     See   CRIMES,   85-87. 

NAMES. 

At  common  law  an  individual  might  change  his  name 
without  judicial  sanction  but  under  the  statutes  pre- 
vailing in  extraterritorial  jurisdictions  such  change 
requires  a  legal  proceeding  and  "sufficient  reasons  not 
inconsistent  with  the  public  interest"  which  were  found 
to  be  established,  815,  818. 

NATIONALITY.      See  CITIZENSHIP. 

NATURALIZATION.     See   CITIZENSHIP,  8,  11. 

NEGLIGENCE.      See    CONTRIBUTORY    NEGLIGENCE.      REFORMATION,    3,    4. 
14008  O.  W. 66 


1042  INDEX. 

NE    EXEAT. 

Ground  for  writ  of,  held  insufficient,  244. 

NEGOTIABLE  INSTRUMENTS.     See  Parties,  2. 

1,  Instrument  sued  on  found  to  constitute  one  of  a  series  of 

"bought  and  sold  notes,"  438. 

2.  Broker  not  entitled  to  enforce  such   instrument   nor,   in 

the   absence   of   express    assumption,    not   here   shown, 
subject  to  liability  thereon,  438,  440. 
NEW  TRIAL. 

Error  of  law  is  a  sufficient  ground  for,  under  section  43, 
Court    Regulations,    341,    342. 

NOLLE  PROSEQUI.      See  PROCEDURE,  3,  4. 

NOTICE.      See    CONTRACTS,   74-78.      MORTGAGES,   2. 

NOVATION.     See  Contracts,  37. 

OFFICERS.     See  Corporations,  7. 

ONUS  PROBANDI.     See  EVIDENCE,  12-22. 

OPIUM  TRAFFIC. 

1.  Inadequacy  of  penalty  provided  by  Act  of  1887, 

522,  523,  524. 

2.  Requirement  of  forfeiture  "for  the  benefit  of  the  Emperor 

of  China"  applied  in  favor  of  Chinese  Republic,  523. 

3.  Where  drug  has  already  been  seized  by  Chinese  Customs 

officials  no  order  of  confiscation  is  necessary,  524. 

4.  Legislation,  349,  351. 

ORDERS  IN  COUNCIL.     See  TABLE,  ante,  p.  lix. 

PARDON. 

Prisoner  accepting,  bound  by  conditions,  66. 

parent  and  child.    see  adoption.    citizenship,  7,  11.    divorce, 
10.     Succession. 

PARTIES.     See  PLEADING,  3. 

1.  Foreign,  in  Consular  Courts,  12. 

2.  Only  a  party  to  the  action  may  be  a  party  to  the  judgment, 

223. 

3.  In  an  action  against  the  guarantor  of  a  promissory  note 

principals  need  not  be  joined,  especially  if  outside  the 
jurisdiction,  646. 

4.  Where  defendant   in   an   action   involving   title   and   pos- 

session has  transferred  his  interest  in  the  property  the 
transferee  will  be  joined  as  a  defendant  on  application, 
282. 

PARTNERSHIP.     See  CONTRACTS,  79-82. 

PAYMENTS.      See   CONTRACTS,   59. 

PENALTIES.     See  CRIMES,  17-29. 


INDEX.  1043 

PERJURY.     See  CRIMES,  93. 
PETITION.      See    PLEADING. 

PLEADING. 

1.  Under  consular  court  regulations,  189,  201,  222,  223,  973. 

2.  Evidence  and  particulars  need  not  be  pleaded,  201,  834, 

(but  see  245). 

3.  But  petition  by  the  "liquidator"  of  a  foreign  corporation 

should  allege  the  particulars  of  his  appointment  and 
authority  therefor  should  be  specifically  pleaded,  246. 

4.  So  should  fraud.  Id. 

5.  Requirement  of  particularity  stricter  in  defamation  than 

in  ordinary  cases  and  the  time,  place  and  hearer  of  Ihe 
offending  statement  must  be  set  out  if  required  by  the 
adverse  party,  814. 

6.  Petition  alleging  breaches  of  lease  and  praying  damage 

"by  reason  of  unlaw^ful  acts  of  the  defendant  as  above 
set  forth"  sounds  in  contract  and  not  in  tort,  168. 

7.  A  pleader  vv^ho  "elects  to  avoid  a  contract"  cannot  after- 

w^ard  be  heard  to  invoke  its  terms,  760,  761. 

8.  Demurrer;  form  sufficient  if  statutory  requirements  are 

met,  317. 

9.  Under   a   general   denial   defendant   may   show   that   the 

contract  sued  on  w^as  different  from  that  alleged  but 
such  denial  admits  averment  of  defendant's  corporate 
capacity,    9.55. 

10.  Immaterial  averments  are  not  admitted  by  failure  to  deny 

and  an  averment  must  be  clear  and  unequivocal  to 
support  a  judgment  on  the  pleadings,  972,  973. 

11.  Capacity  to  sue  not  raised  by  denial  that  plaintiff  is  a 

"firm  or  company;"  must  be  raised  by  demurrer,  335. 

12.  Proof    of    such    averment   is    waived   by    stipulation    for 

judgment  on  such  findings  as  court  should  make,  336. 

13.  Denial  of  a  stipulation  set  forth  in  a  petition  inapplicable 

to   any  other  stipulation,   201. 

14.  Amendments  after  trial  allowed  as  a  rule  only  when  not 

substantially  changing  cause  of  action  or  defense,  998. 
Criminal. 

15.  Complaints  and  informations  must  conform  to  statutory 

definition  of  crime  charged,  189. 

16.  Information  charging  vagrancy  held  sufficient,  189. 

17.  Information  charging  commission  of  crime  "on  or  about" 

a  certain  date  not  vitiated  by  proof  that  it  occurred 
the  day  after,  630. 

18.  An  information  in  an  extraterritorial   court  which  fails 

to  allege  defendant's  nationality  is  demurrable,  376. 

19.  Plea  of  guilty  admits  only  specific  averments  of  informa- 

tion and  not  facts  judicially  noticed,  621. 


1044  INDEX. 

PLEDGES.    See  Mortgages. 

PRACTICE.      See    APPEAL.      PROCEDURE. 

PRELIMINARY  EXAMINATION  .      See  PROCEDURE,  1. 

PRESCRIPTION.      See  LIMITATION   OF  ACTIONS. 

PRESUMPTIONS.      See  EVIDENCE,  6-10. 

PRINCIPAL  AND  AGENT.     See  AGENCY. 

PROBATE.     See  Administration  of  Estates.    Wills,  2. 

PROCEDURE.     See  APPEAL.      EVIDENCE,  26  et  seq.     Law,  23. 

1.  A    preliminary    examination    will    not   bar   a    subsequent 

prosecution,  129. 

2.  Evidence  may  be  received  even  after  plea  of  guilty  for  the 

purpose  of  showing  circumstances  affecting  the  penalty, 
516. 
Discontiniiance. 

3.  Of  prosecution  before  trial  is  discretionary  with  District 

Attorney  subject  to  no  other  approval  than  the  Court's 
which  is  ordinarily  granted  as  a  matter  of  course,  666, 
636. 

4.  Motion  therefor  may  be  made  at  any  stage  of  the  cause, 

636. 
PROCESS. 

1.  A  corporation  with  an  agent  in  China  is  bound  by  a  proper 

summons  left  with  the  latter  who,  by  accepting  agency, 
undertakes  to  transmit  same,  639. 

2.  The  mere  leaving  of  such  writ  with  the  agent  is  not  an 

exercise  of  jurisdiction  over  him,  640. 

3.  In  suit  for  divorce  without  alimony  service  by  publication 

is  sufficient,  484. 

4.  Voluntary   appearance   of   defendant   waives   jurisdiction 

over  the  person,  Id. 

PUBLIC  POLICY.     See  CONTRACTS,  23  et  seq.,  63. 

QUANTUM  MERUIT.      See  CONTRACTS,   18. 

REAL  PROPERTY. 

Under  Shanghai  land  tenure  system  disputes  between 
Chinese,  regarding  title  to  land  included  in  Taotai's 
deed  to  an  American,  should  be  adjusted  through  dip- 
lomatic channels,  239. 

RECORD.      See    MORTGAGES,   2. 

REFEREES. 

May  be  appointed  by  American  Consular  Courts  in  China, 
476. 


INDEX.  1045 

REFORMATION. 

1.  Grounds  for  not  established,  449. 

2.  A  written  contract  which  fails  by  reason  of  mutual  mis- 

take, or  of  a  unilateral  one  induced  by  representations 
of  the  other  party,  to  express  the  real  agreement,  will 
be    reformed    accordingly,    940. 

3.  Where  the  mistake  was  so  induced  negligence  on  the  part 

of  the  one  seeking  such  relief  is  not  fatal,  946. 

4.  But  relief   may   be   conditioned   upon    reimbursement   of 

adverse  party  for  loss  resulting  from  such  negligence, 
in  estimating  which  losses  not  all  the  rules  applicable 
to  ordinary  damages  need  be  applied,  949. 

REGISTRATION.      See    MORTGAGES,   2. 

REMEDIES.     See  ACTIONS. 

RESCISSION.     See  Contracts,  46-48,  88. 

RES  GESTAE.     See  Evidence,  36. 

RESTRAINT  OF  TRADE.      See  CONTRACTS,  29-33. 

ROBBERY.     See  Crimes,  94-97. 

SALES.     See  CONTRACTS,   83-95. 

SEAMEN.     See  COURTS,   17.     SHIPS. 

SELF-DEFENSE.      See  CRIMES,  9-11. 

SET-OFF.     See  Intervention. 

1.  Defined  and  distinguished,  739. 

2.  Available     against    alien    in     American    extraterritorial 

courts  only  to  extent  of  latter's  claim,  25,  27,  et  seq., 
31n.,   91,    739,    740. 

SHIPS.     See  Carriers.     Courts,  5. 

1.  "Floating  Island"  theory,  50,  63,  397. 

2.  Seamen  on  American,  treated  as  citizens,  64,  65. 

SLANDER.     See  Crimes,  47-49. 

SPECIFIC  PERFORMANCE. 

Injunction  as  negative  method  of,  768,  830,  999,  1000. 

STARE  DECISIS. 

Doctrine   applied,  278,  528,  868,  981. 

"STATE'S   EVIDENCE."      See    CRIMES,    30. 

STATUTE  OF  FRAUDS.      See   CONTRACTS,  21,  22. 

STATUTE  OF  LIMITATIONS.      See  LIMITATION  OF  ACTIONS. 

STATUTES.     See  COURTS,  7,  8.    Law,  9-23.     Legislation.    Table, 
ante,  1-lx. 

STOCK  EXCHANGE,  225,  240. 


1046  INDEX. 

SUCCESSION. 

1.  Of   Americans   in    China,   governed   by   Act   of   Congress 

of  March  3,  1901,  and  consistent  provisions  of  Act  of 
June  6,  1900,  525. 

2.  But   the    descent   of    real    property    is    governed    by    the 

lex  loci  rei  sitae,  539. 

3.  Such  property  is  not  a  primary  asset  of  the  estate  but 

vests  at  once  in  the  heir,  Id. 

4.  Father  succeeds  to  whole  estate  of  child  dying  without 

issue,  540. 

5.  Widow  entitled  to  one  third,  children  to  balance,  539,  599, 

725. 

6.  Heir  by  force  of  law,  having  notice  of  provisions  of  will 

which   ignores  him  but  claiming  no   share,   deemed  to 
have  waived  same,  526,  527. 

7.  Heir  allowed  time  for  election  as  to  forum,  539. 

8.  The  estate  of  natural  child  who  dies  intestate  and  whose 

mother  is  likewise  dead  passes  to  the  latter's  heirs  at 
law,  937. 

9.  Legislation  regarding  estates  of  American  seamen  dying 

abroad,  reviewed  and  construed,  717-722. 
SUMMONS.     See  Process. 
SURETYSHIP.     See  Contracts,  73-78. 
TORTS.     See  Pleading,  5,  6. 
TREATIES.     See  Table,  cmte,  p.  Ixi. 

1.  Extraterritorial  jurisdiction  dependent  on,  32,  34. 

2.  Legal    efficiency    of,    unaffected    by    internal    changes    in 

governments,  259. 

TRIAL.     See  Appeal,  45.     Venue,  3. 

TRUSTS.     See  WiLLS,  24,  25. 

Fiducial  relation  not  shown  between  salesman  and  cus- 
tomer, 908. 

TURKEY. 

1.  American  extraterritorial  rights  in,  32  et  seq. 

2.  British  extraterritorial  rights  in,  12  et  seq. 
UNITED  STATES  COMMISSIONER.  See  Commissioner. 
VAGRANCY.     See  Crimes,  98-101. 

VENDORS.     See  Contracts,  79-91. 
VENUE. 

1.  Of  Consular  Court  cases,  10. 

2.  Offence  under  White  Slave  Traffic  Act  of  Congress  triable 

in  China  though  initiated  in  the  United  States,  262. 

3.  U.  S.  Court  for  China  not  governed  by  Rev.   Stats.  Sec. 

4085  regarding  place  )of  trial  and  latter  is  not  juris- 
dictional, 508. 
WAGERS.     See  Contracts,  23-25. 


INDEX. 


1047 


WAREHOUSEMEN. 

1.  Defined,  991. 

2.  Lien  of,  at  common  law  attached  only  to  specific  property 

for  which  charge  was  imposed  but  by  statute  attaches  to 
other  goods  of  the  same  bailee  whenever  deposited,  990. 

3.  Custom  of,  to  charge  a  month's  storage  on  goods  left  more 

than  ten  days  enforced,  990. 

WARRANT.     See  ARREST,  1-3. 

Does  not  necessarily  mean  warrant  of  arrest,  359. 

WEAPONS.     See  CRIMES,  28. 

WILLS.     See  Evidence,  6,  40,  51. 

1.  No  particular  form  necessary  if  intention  is  disclosed  to 

dispose  of  property  effective  after  death,  713,  716. 

2.  Informal    instrument    found    sufficient    and    admitted    to 

probate,  714. 

3.  Not  invalidated  because  decedent's  signature  appears  in 

last  clause  instead  of  at  end,  648. 

4.  Nor  because  testator's  hand  was  guided  by  another,  654. 

5.  Nor  because  a  subscribing  witness,  not  benefiting  there- 

from, is  named  executrix,  649. 

6.  Importance  of  care  in  drafting,  649,  716. 

7.  Holographic  defined,  843,  912. 

8. valid,  92,  93,  627,  893,  912,  939. 

9. need  not  be  subscribed  nor  attested,  627. 

10. nor  is  designation  of  executor  necessary,  628. 

11. instrument    containing    words    written    by    decedent 

sufficient  to  effect  valid  disposition  of  property,  is  an 
holographic  will  tho  it  also  contain  printed  matter 
not  inconsistent  therewith,  and  tho  not  properly  at- 
tested, 939. 

12.  A   codicil   may  be   holographic   tho   the    original    instru- 

ment was  regularly  subscribed  and  attested,  894. 

13.  The  codicil  may  take  the  form  of  an  erasure  and  an  inter- 

lineation if  in  decedent's  handwriting.  Id. 

14.  Codicils  are  to  be  considered  together  with  original  in- 

strument as  one  and  where  some  of  the  provisions 
conflict,  the  latest  codicil  prevails  and  effects  a  republi- 
cation proceeding  instrument,  771,  773. 

15.  While  requirements  of  a  codicil  as  to  attestation  are  the 

same  as  those  of  a  will,  a  codicil  defective  in  that  regard 
may  be  validated  by  a  subsequent  one,  771,  773. 

16.  Such  instrument  recited  and  construed  according  to  pre- 

ceding rules,  771. 

17.  Nuncupative,    permissible    in    this    jurisdiction    by    none 

other  than  soldiers  in  the  service  and  mariners  at 
sea,  935. 


1048  INDEX. 

WILLS— Continued. 

18.  Testator's  intent  chief  guide  in  testamentary  construction 

and  will  be  carried  out  as  nearly  as  possible  tho 
defectively    expressed;    rule    applied,    693,697,698,716, 

19.  Particular  directions  prevail  over  general  provisions,  895. 

20.  Presumed  to  cover  entire  estate,  632. 

21.  Punctuation  supplied  to  clear  up  ambiguity,  Id. 

22.  The  phrase  "all  my  valuables"  construed  to  cover  entire 

estate  personal  and  real,  633. 

23.  Bequest  to  a  person  "or  his  heirs"  considered  as  a  bequest 

to  him,  845. 

24.  A  bequest  to  a  mother   and  child  or  children   creates   a 

trust  in  favor  of  the  latter  each  of  whom  takes  an  equal 
share,  895,  896. 

25.  A  bequest  "to  my  successor  in  the  work  in  trust  for  the 

Hardy  Bible  Training  School"  construed  as  bequest  to 
latter,   1001    (note). 

26.  Where  the  sole  beneficiaries  are  a  brother  and  sister  desig- 

nated as  "my  two  children"  and  the  latter  dies  before 
distribution,  the  former  takes  her  entire  estate  includ- 
ing her  share  under  the  will,  846. 

27.  A   clause   directing   investment  of   decedent's   funds   "for 

benefit  of  my  wife  and  daughter"  constitutes  a  direct 
bequest  to  each  in  equal  shares,  1001. 

28.  Revocation.     A  devise  to  "my  wife,  Mrs.  Eleanor  Biddle" 

is  not  revoked  by  the  subsequent  divorce  of  the  benefi- 
ciary, tho  at  her  instance,  888. 

29.  Sufficiency  of  certified  copy,  668. 

WITNESSES.     See  Evidence,  11,  38,  41  et  seq.    Wills,  5,  9. 

WORDS  AND  PHRASES. 
"Abroad,"  422. 

"Act  of  God,"  606,  618. 

"Agent,"  198,  209. 

"All  my  valuables,"  632,  633. 

"Amicus  curiae,"  419   (note). 

"Arrest,"  361. 

"Best  part,"  728,  729. 

"Common  law,"  84,  87,  113,  123,  228. 

"Contributory  negligence."  559. 

"Conceal,"  392. 

"Custody,"  361. 

"Dangerous  weapon,"   130. 

"Delivery,"  88,  89. 

"Domicil,"  95,  137-142. 

"Effects,"  633. 


INDEX.  1049 

WORDS  AND  PHRASES— Continued. 
"Ejusdem  generis,"  303,  337. 
"Extraterritorial  domicil,"  151. 
"Extraterritoriality,"  95. 
"Floating  island,"  ship  as,  63,  397. 
"Force  majeure,"  982. 
"Foreign  commerce,"  263. 
"High  seas,"  40,  57,  398. 
"Indian  country,"  313. 
"Judicial  proceeding,"  355. 
"Jurisdiction,"  639. 
"Laws    of   the   United    States,"    199,   472,   477,   638,   659-661,   689, 

897,  898. 
"Libel,"  486. 
"Liquidator,"  245. 
"Malice,"  489. 
"May,"  421. 

"Necessary,"  638,  661,  686,  689,  760,  898,  950. 
"Net  marine  sales,"  219. 
"On  or  about,"  630. 
"Proximate   cause,"    594. 

"Reasonable  doubt,"  555,  782,  963,  and  note. 
"Servant,"  198,  209. 

"Suitable,"  541,  638,  661,  664,  689,  760,  892,  898,  951. 
"Swear,"  788. 
"Vagrancy,"  190,  194. 
"Warehousemen,"  991. 
"Warrant,"  359. 
"Workhouse,"  542. 

MAXIMS. 

Conventio  facit  legem,  928. 
Damnum   absque   injuria,  468. 

Expressio  unius  est  exclusio  alterius,  172,  421,  709,  883. 
"He  who  seeks  equity  must  do  equity"  is  a  maxim  applicable  to 
each  claimant  for  equitable  relief  and  prerequisite  thereto,  944. 
Ignorantia  legis  hand  excusat,  332. 

In  pari  delicto  melior  est  conditio  possidentis,  429,  465. 
Injuria  sine  damno,  468. 

Lex  7ieminem  cogit  ad  vana  sen  inutilia,  724, 
Nemo  haeres  viventis  est,  845. 
Semper  praesumitur  pro  matrimonio,  367.  i 

WORK  AND  LABOR.      See  CONTRACTS,  60-72. 

o 


■r. 


^ERIM  BRANCH^ 

vMY  OF  CALfFORNfAi 

LIBRARY, 
ILDS  ANGELES.  CAUf: 


